Favors v. State

White, Presiding Judge.

I. Defendant’s witness Ward testified on examination in chief that the reputation of the prosecutrix for chastity was bad. On cross-examination the district attorney asked the witness if the reputation of the prosecutrix “ was not about upon an average for unmarried darkies,” and the witness answered that it was. On re-examimation, defendant’s counsel asked the witness what he meant by the expression “ average reputation for unmarried darkies?” To which the prosecution objected because not in rebuttal of anything drawn out on cross-examination, and the court sustained the objection and refused to permit the witness to explain.

Mr. Greenleaf says: “ After a witness has been cross-examined respecting a former statement made by him, the party who called him has a right to re-examine him to the same matter. The counsel has the right upon such re-examination to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful.” (1 Greenlf. Evid. (13th ed.), § 467; same doctrine, Whart.’s Crim. Evid. (8th ed.), § 493.) Under this rule appellant was entitled to ask and have an answer to his question on reexamination, and it was error to disallow it.

II. The prosecutrix, on cross-examination by defendant’s counsel, was asked if certain parties had not been talking to and urging her to swear against the defendant, endeavoring thereby to show that she had been influenced by such other parties to institute and carry on the prosecution, and that but for their influence and instigation there would have been no prosecution. In answer to these questions the prosecutrix denied that she had thus been talked to, urged, instigated and influenced by said parties. On re-examination by the district attorney he asked the witness if the relatives and friends of the defendant had not been talking to her and trying to induce her not to testify against defendant. Defendant by counsel objected because irrelevant and because it was not proposed to show that defendant himself was in any way connected with such effort to suppress the testimony. This objection was overruled and the witness was permitted to testify that defendant’s mother, sister and brother had talked to her in behalf of defendant, and tried to get her not to testify against defendant.

It was error to'admit the evidence. Defendant had the right in the first instance to inquire, on cross-examination, into the motives inducing the witness to prosecute him. (Whart.'s Crim. Evid., §§ 477, 485; 37 Miss., 383; Hart v. The State, 15 Texas Ct. App., 202.) On the other hand, the prosecution might have shown, had such been the fact, that the defendant in person had bribed or attempted to bribe the witness, or that he had in person attempted to induce her not to testify against him. (1 G-reenlf. Evid., § 461, and note.) But what bis relatives did in the matter was not binding upon him, and could not be adduced as evidence against him.

III. It is strenuously urged that the court committed a grave error in the definition of “force” given in the first paragraph of the charge to the jury, in these words, viz.: “ The definition of force as applicable to assault and battery applies also to the crime of rape, and it must have been such as might have reasonably been supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and all other circumstances of the case.” This instruction is a literal, verbatim copy of the definition of “force” found in the chapter upon rape in the Penal Code, article 529. (Jones v. The State, 10 Texas Ct. App., 552; Jenkins v. The State, 1 Texas Ct. App., 346; Anschicks v. The State, 6 Texas Ct. App., 525; Saddler v. The State, 12 Texas Ct. App., 194; Sharpe v. The State, 15 Texas Ct. App., 171; Bass v. The State, 16 Texas Ct. App., 62.)

Objection is made to the fourth paragraph of the charge, which is as follows: “ Evidence of the character of the woman charged to have been raped, as to her chastity or the reverse, is admissible only for the purpose of being considered by the jury in arriving at a conclusion as to whether or not consent was given, and for no other purpose; the law being that a woman of bad character as to chastity is entitled to protection of her person as well and as much as one of good character in that respect.”

[Opinion delivered January 16, 1886.]

The general rule in this State is that “ the general character for' chastity of the alleged injured female may be shown to be bad, not in justification of the offense, but as weakening the evidence of the prosecution as to want of consent.” (Lawson v. The State, 17 Texas Ct. App., 292, in which many authorities are cited.) We cannot say that the instruction was erroneous under the law as it obtains in this State. Other errors complained of are not likely to arise upon another trial of the case.

For error in the rulings of the court with regard to the admissibility of the evidence, above discussed, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.