This case was affirmed at the Tyler term, 1902, and now comes before us on motion for rehearing.
Appellant insists, "that the court has misconceived the point raised by his bills of exception numbers 4, 9 and 10, because in the latter part of that paragraph of the opinion, discussing these bills, the court used the following language: `There was no error in this, since the question as to whether or not prosecutrix consented to the rape is not a matter to be inquired into.' Appellant insists that the question of consent is not raised in his brief at all, but that the point raised is, that prosecuting witness Ethel Stoval having testified that appellant was the father of her child, and produced the child in court to corroborate her testimony, and also having testified that she never had sexual intercourse with any other person; thereupon appellant proposed to contradict her testimony by showing that it was not true, and that she had intercourse with various parties named in said bills of exception at a time not so remote but what these parties could have been the father of this child."
The writer is still of opinion that this evidence is inadmissible. Mr. Greenleaf, in his work on Evidence, uses this language: "The character of prosecutrix for chastity may be impeached, but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself. Nor is such evidence of other instances admissible." This proposition is supported by the great weight of American authorities. See 5 Am. and Eng. Enc. of Law, 2 ed., p. 878; 3 Rice on Ev., p. 825; Wharton's Crim. Law, sec. 568; 2 Bishop New Crim. Proc., secs. 965, 966; Smith v. State, 80 Am. Dec., 355, and notes; Rice v. State, 48 Am. St. Rep., 247; State v. Campbell, 20 Nev. 125. And has been so held in this State as early as Pefferling's case,40 Tex. 486, and approved in Dorsey v. State, 1 Texas Crim. App., 35; Jenkins v. State, 1 Texas Crim. App., 354; Mayo v. State, 7 Texas Crim. App., 349; Lawson v. State, 17 Texas Crim. App., 302; Wilson v. State, 17 Texas Crim. App., 533. Judge Moore, delivering the opinion in the Pefferling case, supra, used this *Page 327 language: "The inquiry is for the purpose of proving the character, and it would operate a surprise if any inquiry as to particular instances of immorality or intercourse with particular persons was permitted to establish the character of the witness who, as has been said, can not be supposed to come prepared to defend her character except against a general attack," citing a great number of authorities. But it may be insisted that this testimony is admissible to contradict prosecutrix. If so, it is on an immaterial issue, because she is under the age of consent, and the general reputation of prosecutrix has nothing whatever to do with the question in this case, as it is a violation of law to have carnal knowledge of her person with or without her consent. Lawson v. State, 17 Texas Crim. App., 292; Steinke v. State,33 Tex. Crim. 66; Favors v. State, 20 Texas Crim. App., 155; People v. Johnson, 106 Cal. 294; Underhill on Crim. Ev., sec. 418; McClain Crim. Ev., sec. 460; State v. Duffey, 128 Mo., 549; People v. Abbott, 97 Mich. 484. If specific acts of intercourse are not admissible where appellant is on trial for rape upon a matured woman, but only general reputation or specific acts of intercourse with defendant, there can be no good reason why the same rule would not apply to prosecutrix under the age of consent. All the authorities hold that the general reputation of prosecutrix, or specific acts of intercourse with the defendant, are only admissible on the question of consent; and the authorities hold that it is the duty of the court to limit it to this purpose. Then, clearly, it would be inadmissible for any other purpose.
But appellant insists that the State, having proven by prosecutrix that appellant was the father of her child, he should then be permitted to contradict her by proving previous acts of intercourse with other parties who had opportunities of becoming the father of the child; and that their testimony would have shown that they did have such intercourse at a time that would make it appear they could have been the father of the child. Concede it. It is immaterial in this case whether appellant was the father of the child. If he had carnal intercourse with prosecutrix, he is guilty of rape, whether with or without her consent. The fact that he is the father of the child makes him none the less or more guilty. Defendant could have objected to the testimony when the State proposed to prove that he was the father of the child, as it was wholly immaterial whether he was the father of the child or not. The following authorities hold that, where the question is asked prosecutrix whether or not she has had intercourse with other parties than the accused, her answer is conclusive, upon the theory that it is an inquiry into an immaterial matter, and can not be pursued further. Reg. v. Holmes, 12 Cox, C.C., 137; same case, L.R.I.C.C., 334; Reg. v. Cockcroft, 11 Cox, C.C., 410; People v. Jackson, 3 Parker, Crim. Rep., 391. However, as appellant insists, the case of Bice v. State, 37 Tex.Crim. Rep., is exactly in point, supporting his contention. In that case appellant offered to prove by the witness F.T. Kinman that on two occasions about the 1st of September he saw prosecutrix in the act of intercourse *Page 328 with one Jim Kinman. The court there held that the testimony should have been admitted to refute the facts and circumstances in evidence tending to establish pregnancy of the said Minnie Cannon on account of her alleged intercourse with said defendant. The writer does not agree with this decision, but the majority of the court hold that the same is correct, and under the authority of said case the motion for rehearing is granted, and, on account of the failure of the court to permit the introduction of said testimony, the judgment is reversed and the cause remanded.
Motion granted and case reversed and remanded.