Appellant has filed a rather lengthy motion for a rehearing in which he contends that the trial court committed fundamental error in submitting the case to the jury as one of rape on a female under the age of consent because the indictment charged the defendant with rape by force on a female under the age of consent, thereby submitting to the jury an entirely different and distinct offense. Omitting the formal parts, the indictment *Page 39 reads as follows:
"* * * that one Albert Harold Fletcher on the 16th day of December in the Year of our Lord One Thousand Nine Hundred and 39, with force and arms, in the County and State aforesaid, in and upon Mary Evelyn Curtis, a female, then and there under the age of eighteen years, did make an assault, and the said Albert Harold Fletcher did then and there ravish and have carnal knowledge of the said Mary Evelyn Curtis, the said Mary Evelyn Curtis not being then and there the wife of the said Albert Harold Fletcher, etc."
We do not deem it necessary to enter upon an extended discussion of the question here presented. A reference to the case of Patton v. State, 287 S.W. 51, seems decisive of the question. We quote from the opinion in that case as follows:
"In the indictment it is charged that the appellant 'did make an assault upon and did then and there ravish and have carnal knowledge,' etc. The prosecutrix was averred to be under 15 years of age. Under this indictment, a conviction could be sustained upon proof of either rape by force or by acquiescence of a female, whose age was below 18 years. See Buchanan v. State, 41 Tex.Crim. R., 52 S.W. 769. Such an indictment, by the use of the word 'ravish,' charges rape by force, but the additional words, 'have carnal knowledge,' embraced in the same count, permits proof of the other phases of rape. See Dyer v. State, (Tex. Cr. App.) 283 S.W. 820."
Appellant re-asserts the contention that the trial court erred in declining to give a peremptory instruction to the jury to return a verdict of not guilty. He claims that he established by circumstantial evidence the unchastity of the prosecutrix, in this: That he proved she drank whisky and permitted young men to kiss and hug her. The prosecutrix testified that she was a virgin at the time that she was assaulted by appellant; that she had never had sexual relations with any man prior to the time in question. Consequently, appellant was not entitled to such an instruction even though the issue of her unchastity might have been raised. However, we do not believe that any female who may take a drink of intoxicating liquor and even kiss or permit friends of the opposite sex to hug and kiss her would be sufficient to raise the issue of her previous unchastity. To so hold might cast suspicion upon a great number of our virtuous women and besmirch their good character. We think this question has been fully and definitely settled by the opinion rendered by this court in the case of Satterwhite v. State, 23 S.W.2d 356, in which Judge Lattimore, speaking for the *Page 40 court, on State's Motion for Rehearing, said:
"It seems to the writer that it would be far better to adhere to the long-established rules of procedure in Texas in such regard, than fly to speculative ills we wot not of. Young America in 1929 seems not as adverse to hugging and kissing friends of the opposite sex, as may have once been the case; but this would hardly justify the legal conclusion that such conduct tends to show lack of chastity. Nor is the fact of one becoming under the influence of strong drink, even if deplorable, to be held in law to involve sexual or other immorality, or even to tend in that direction.
* * *
"In passing we note that in the case last mentioned (Wood v. State, 80 Tex.Crim. R., 189 S.W. 474), the court below excluded the testimony of a witness for the defense who swore that he hugged and kissed prosecutrix, and this court upheld said action of the trial court and cited Kearse v. State, (Tex. Cr. App.) 88 S.W. 364, wherein the court below refused to allow a defense witness to swear that prosecutrix kissed him; this court observing that from such proof it would not follow that she would allow another man to kiss her."
Appellant next complains because we declined to consider his Bystanders' Bill of Exception No. 11, wherein he excepted to the following remarks by the District Attorney in his argument to the jury:
"You Fletcher, have had lots of experience. You are the master mind. You were driving the car. You have been married twice and have two babies."
This bill was contested by the State, but appellant, now for the first time, asserts that the contesting affidavit was not filed within ten days after the Bystanders' Bill had been filed as required by Article 2237, sec. 9, Revised Civil Statutes. This matter was not called to our attention on the original submission and it escaped our notice. A re-examination of the record discloses the correctness of the appellant's contention. Hence the contesting affidavit cannot be considered and we are constrained to decide the question presented upon the merits of the bystanders' bill. It is true that the record shows that Gertrude Jacobs, a witness for appellant, testified to his general good reputation; and on cross-examination she was asked by the District Attorney if her sister didn't marry appellant and if she didn't have a three-year old child, a girl, by him, which questions were answered in the affirmative. However, at the *Page 41 conclusion of the testimony appellant requested the court to withdraw said testimony from the jury and instruct them not to consider it for any purpose, which the court did. It is our opinion that by so doing the court committed an error against the State because it had a right to show, if it could, the interest or motive of the witness in the result of the trial. The witness' niece was the appellant's child and the odium which flowed from his conviction would cast its shadow upon the child. Nevertheless, when the court withdrew this testimony from the jury, the case stood as if it had not been introduced. Therefore, the argument of the District Attorney was tantamount to bringing to the attention of the jury, by way of argument, unsworn testimony which was not before them and which was hurtful and prejudicial, requiring a reversal of the judgment. Prosecuting attorneys in their argument should confine themselves to a discussion of the evidence admitted under the ruling of the court and legitimate deduction therefrom. When testimony has been withdrawn from the jury the State's attorney should refrain from commenting thereon. See Kerr v. State,128 Tex. Crim. 373; Sarli v. State, 80 Tex.Crim. R.; Bradley v. State, 72 Tex.Crim. R.; Cannon v. State, 84 Tex. Crim. 479.
The motion for rehearing is granted, the order of affirmance is set aside and the judgment is now reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.