Lewallen v. State , 33 Tex. Crim. 412 ( 1894 )

DAVIDSON, Judge.

Conviction was had for assault with intent to commit the crime of rape, under an indictment charging that offense. The State proved flight on the part of appellant as a circumstance against him. Explanatory of this occurrence he offered to prove by his father, that “shortly after the alleged commission of the offense, and before the flight of the defendant,” he informed “defendant that a mob was being formed to hang him if he was caught, and this was the reason the witness advised him to flee;” and witness further “told defendant, that if he wanted to save himself from the mob he had better run away; that witness had seen Aleck Tucker and John Cox on the night of the difficulty, and after it had occurred, and before defendant had left the county, and they both told him a mob was being organized, and if defendant was caught he would be hung; and witness told the same to defendant and advised him to flee.” This evidence, on objection of the State, was rejected. This was error. The bill of exceptions is signed by the court with the qualification, that “before the evidence was offered defendant had testified, and the court held that it was competent for the defendant to state his motive in evading arrest. Counsel for defendant declined to make his proof by defendant why he evaded arrest.” It was not incumbent on appellant to make this proof by any particular witness. He could prove it by any witness who knew the facts, whether it was himself, his father, or another. That he did not testify in this regard did not constitute a valid reason for rejecting the evidence when offered through another witness. The evidence was admissible. Arnold v. The State, 9 Texas Crim. App., 435. It is always permissible for the accused to rebut any criminative fact sought to be proved against him, and the court is not authorized to reject the evidence of one witness because another witness did not testify to the same fact or state of facts.

Appellant offered to testify that his intention was to have sexual intercourse with the prosecutrix with her consent, and not by force and against her consent. This was also excluded, which was error. Berry v. The State, 30 Texas Crim. App., 423, and cited authorities. We are of opinion the charge, viewed as a whole, is sufficient.

The judgment is reversed and cause remanded.

Beversed and remanded.

Judges all present and concurring.