That the appellant had sexual intercourse with the prosecutrix is conceded. Whether it was with or without her consent was an issue of fact. The issue arose directly from the specific testimony of the appellant that the prosecutrix gave her consent and circumstantially from the description of the episode by the prosecutrix and her escort, one Shelton, and from their subsequent conduct. Without going into details, the evidence shows without conflict that the prosecutrix, a girl nineteen years of age, after leaving her place of employment at a cold-drinks stand about ten o'clock at night, went with her escort Shelton to a restaurant. While on the street, the appellant (a married man with whom she had very slight acquaintance) was met and upon his invitation she and Shelton entered the automobile for the purpose of being driven by the appellant to the home of the prosecutrix. Instead of going to her home the car was driven into the country for some distance. During a part of the time the appellant was at the steering wheel and at other times Shelton was driving the car. The appellant fondled the person of the prosecutrix and ultimately had intercourse with her while she was on the seat of the car, Shelton having gotten out of the car at the time. After the occurrence the appellant claimed that the prosecutrix and her escort had taken some money from him and threatened to call the police. A search for the money was made by the appellant, the prosecutrix and Shelton. After the occurrence the parties rode in the appellant's automobile to the home of the prosecutrix, where she and Shelton got out, and the appellant drove to his home.
The evidence justifies the conclusion by the jury that no report was made of the assault by either Shelton or the prosecutrix until *Page 664 after the expiration of three or four days; that in the meantime the prosecutrix had visited a doctor and received a treatment for a bruise on her arm which she had received in the assault; that her clothing was bloody but not exhibited to any one until after it was washed and was later destroyed by her; that immediately after the occurrence she told her companion Shelton that the appellant did not hurt her; that she went to her work on the day after the occurrence; that before the assault the appellant had boasted to some of his friends that he had taken a prostitute for a ride and with contest had had intercourse with her. The doctor who examined her testified in behalf of the State that there was a discharge from her person which was, in his opinion, due to a venereal disease. After the State had closed its case, proof was made demonstrating that neither the appellant nor his wife had been affected with such a disease. Thereafter the physician was recalled and stated that after a microscopical examination he had reached the conclusion that the prosecutrix was not infected with the disease.
We learn from Bill of Exceptions No. 1 that after the prosecutrix had testified as a witness in behalf of the State, the appellant indicated to the court that he desired to ask her numerous questions; that the jury was retired and the appellant detailed to the court the substance of the questions which he desired to ask. Among these questions were, in substance, the following: If it was not a fact that she associated with common prostitutes; that within a year before moving to Bryan she had associated with common prostitutes and had become intoxicated while at a dance and had been removed from the floor because of drunkenness and indecent conduct; that subsequent to her removal to Bryan she had been on drunken parties on various occasions with other young men whose names were given, and that on each of these occasions she allowed her escort to fondle, hug and kiss her, and that upon one occasion she drank to such a degree that it was necessary to carry her home; that it was at a late hour of the night. From the bill it appears that the appellant expected her to give an affirmative answer to some of the inquiries and to deny some of them; that he would offer testimony of the young men whose names were given and embraced in the bill and who were present in attendance upon the court under process; that all of said witnesses would testify that they had been out with the prosecutrix at nights at different times and that on each occasion she became intoxicated and fondled the men and they fondled her. The court stated in the absence of the jury that he would not permit the prosecutrix *Page 665 to be interrogated about these matters nor would he permit the men whose names are mentioned to take the stand and testify in regard to them. The soundness of the legal proposition embraced in the court's ruling in denying the appellant the privilege of making the cross-examination mentioned and of making proof by the witnesses named touching the acts of the prosecutrix is, we think, on reflection, properly before this court for review. The bill makes it clear that the trial judge did not regard the proposed cross-examination proper and was of the firm opinion that the testimony mentioned which was expected from the witnesses named was not admissible, and that the inquiry of them touching their knowledge of the conduct of the prosecutrix should not be permitted.
Many years ago one of the courts of England decided that in a prosecution for rape evidence that the female, before the time of the alleged offense, had had connections with other persons was incompetent. The ruling was based upon the theory that it could not be supposed that the prosecutrix came prepared to defend her character except against a general attack. Without analysing the soundness of the ruling, the Supreme Court of this state followed it and in part it has since been followed by this court. See Pefferling v. State, 40 Tex. Rep. 486. In adopting the rule mentioned by this court the apparent justice of the reception of such evidence was conceded that the weight of authority was in favor of the rule excluding it. See Lawson v. State, 17 Tex.Crim. App. 292. By "weight of authority" it is doubtless meant the number of decisions. At the time the announcement was made in this state it may well be doubted that tested by the rule of better reason the weight of authority supported the holding. The matter is still one upon which there is a difference of opinion. It is said by Mr. Wigmore that "no question of evidence has been more controverted"; and after an analysis of the conflicting views reflected by the decisions and the reasons upon which they are based, Mr. Wigmore, in the latest edition of his work on Evidence (published in 1923), declares that "the better view seems to be that which admits the evidence." From the opinion of the Supreme Court of Tennessee in the case of Titus v. The State, 7 Baxter (Tenn.) 133, the following quotation is taken:
"It would be absurd, and shock our sense of truth, for any man to affirm that there was not a much greater probability in favor of the proposition that a common prostitute had yielded her assent to sexual intercourse than in the case of the virgin of uncontaminated purity. . . . Yet the principle which would exclude the testimony *Page 666 offered must necessarily be based on the idea, either that no such difference exists, or that this element, on which every one would necessarily rely in the formation of an opinion on the question of consent as of great weight, shall be disregarded in such an investigation in court, where the highest object should be the ascertainment of truth, by all means fairly tending to its development."
In harmony with the conclusion mentioned are the following cases: Brennan v. People, 7 Hun (N.Y.) 171; People v. Knight, (Cal.) 43 P. 6; Strang v. People, 24 Mich. 1; People v. Flaherty, 79 Hun 48, 29 N.Y. S. 641; State v. Kittle, 85 W. Va. 116,101 S.E. 70; State v. Johnson, 28 Vt. 512. From the rule as originally declared both the English and the American courts have departed in part, and many of the American courts in toto. See Wigmore on Evidence, 2nd Ed., Vol. 1, pp. 435-436, sec. 200. In this state and in most of the states of the Union, the rule has been modified to the extent, where there is an issue of consent the cross-examination of the prosecutrix touching her relations with other men is permitted subject in some cases to her right to claim the privilege of silence. See Underhill's Crim. Ev., 3rd Ed., p. 859, sec. 621, in which it is said:
"Evidence of drunkenness and dissipation, of the keeping of late hours and of street walking on the part of the prosecutrix will always be received."
In the opinions of this court are many instances in which it has been declared that the lascivious conduct upon the part of the prosecutrix was relevant and competent upon the issue of chastity. As stated in the quotation above and the authorities cited, an unchaste character, whether established by direct or circumstantial evidence, may become a cogent factor in solving the issue of consent or non-consent in a case of rape. In this connection we may mention the cases of Cloniger v. State,91 Tex. Crim. 143; Norman v. State, 89 Tex.Crim. Rep..
In Nolan's case, 48 Tex.Crim. Rep., it was held that the trial court erred in sustaining the objection to the question propounded to the prosecutrix on cross-examination "going to show illicit relations, lascivious conduct with other parties than defendant. This evidence should have been admitted." Touching the cross-examination of the prosecutrix in a case of rape, the opinion of the Supreme Court of New York in the case of The Peoples v. Abbot, 19 Wendell, 195, upholding the right of the accused to ask the prosecutrix whether she had had previous criminal connection with *Page 667 other men, is of interest. Of the case last mentioned the Supreme Court of the State of Missouri, in the case of The State v. Patterson, (88 Mo. 88), speaking through Judge Sherwood, said:
"That case has been criticised, but it has been frequently followed, and the ideas it embodies are fast gaining ground. . . . The reasoning of that case I have never seen answered, nor do I believe it can be."
In the present instance the appellant is shown by the bill to have brought himself within the modified rule touching the admissibility of specific acts in two particulars: First, he sought to exercise the right of asking the prosecutrix leading questions on her cross-examination touching her conduct not going to the extent of illicit intercourse with third parties; and second, he sought to prove by available witnesses specific acts of the prosecutrix going to show her lascivious conduct falling short of illicit relations with others. The questions which he desired to propound to the prosecutrix were so framed as to call her admission or denial of acts relevant to the question involved, namely, her character as bearing upon the probability of the truth of her testimony touching the want of consent. In refusing to accord appellant the privilege of the cross-examination mentioned and in refusing to permit him to introduce the witnesses mentioned in the bill and prove that the prosecutrix on numerous occasions had been out with menother than the appellant and had on each occasion becomeintoxicated and had permitted them to fondle her person andthat she had engaged in similar conduct towards them, the trial court was in error. The prosecutrix's course of conduct, as revealed by the testimony, is relied upon by the appellant as discrediting her and her companion to a degree that requires a reversal of the case for the insufficiency of the evidence. We are not in accord with this contention. Some of the matters mentioned are recognized by the law as cogent circumstances for the consideration of the jury in deciding the controverted issue of consent, but we do not regard them conclusive. We are of the opinion, however, that the evidence of non-consent is not of a character so conclusive as to render the error mentioned harmless.
The motion for rehearing should be granted, the affirmance set aside, the judgment of the trial court reversed and the cause remanded for another trial. It is so ordered.
Granted. Judgment reversed and remanded. *Page 668
ON MOTION FOR REHEARING