Clark v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant contends in his motion that if we were not in error in our holding in the original opinion “whether the prosecuting witness was or was not a virgin was not material to any issue in this case,” then such testimony’s immateriality could only be aggravated by the testimony of the doctor showing the virginity of the injured female. In other words, if the promiscuity of the female in granting sexual favors was an immaterial matter, then her failure to grant any such favors was also immaterial, and the trial court erred in allowing the doctor to testify as to her virginity.

In the major portions of presented cases the above quotation •vrom the original opinion is a correct proposition of law; each case, however, should of a necessity be governed by its own peculiar facts.

We will attempt to analyze this matter of proof as the same was presented at the trial hereof. Appellant’s attorney, in an opening statement to the jury relative to what he expected to prove, had made the statement that he expected to prove that the party alleged to have been assaulted was not a virgin at such time, necessarily meaning that the young lady had prior to such time granted sexual favors to other men, and causing him (appellant) to think she would be thus indulgent to him. This statement was an uncontrolled one to a great extent by the court, it not being offered proof but only that which the appellant expected to prove; then appellant testified that he did attempt certain familiarities with the young lady’s person because of the fact that he had been informed by others that she was in the habit of granting such favors to men. This was his reason for attempting on two- or three occasions to gradually and shrewdly lead on this young lady until she would also grant him such, favors, hoping to finally “get into her pants,” admitting that he fondled her person, but claiming no violence was used upon her, but that she did fight him, and finally escaped from him. Unquestionably these statements of appellant and his attorney were an attack upon the character of this nineteen-year-old girl, and we think that the State should have been allowed to have refuted such by the showing of her absolute virginity. It is said in Hudson v. State, 28 Texas App. 323, 13 S. W. 388:

“Even if said evidence was collateral, irrelevant and immaterial, the defendant should not be heard to complain; he having provoked or caused its introduction.”

Also see Vol. 13 Texas Digest, Sec. 1137 (5), and many annotations thereunder. It is our opinion that appellant provoked by his own acts testimony that became material in this matter, and no error is evidenced by the admission of the testimony of Dr. Scott.

Under the circumstances presented herein we adhere to our ruling in the original opinion, and the motion is overruled.