A proper appeal bond having been filed, the appeal is reinstated and the case considered on its merits.
Prosecutrix, Dessie Wright, testified to three acts of sexual intercourse with appellant. It was uncontroverted that prosecutrix was over fifteen and under eighteen years of age at the time, and that she consented to the illicit relations. Appellant failed to testify in his own behalf, and contented himself with offering testimony to the effect that prosecutrix had extended carnal favors to another man previous to the date relied upon by the State in this case. Prosecutrix denied relations with any man other than appellant.
Bill of exception No. 10 recites that the first act of intercourse between prosecutrix and appellant occurred on the 29th of December, 1926; that the court permitted prosecutrix to testify that she and appellant had two subsequent acts of intercourse, one on the 9th day of February, 1927, and a later act, the date of which was not fixed. It appears that the first act of intercourse occurred at the home of Lon Simpson, and that a second act occurred in a pasture some distance *Page 487 removed from the home of Simpson. The only controverted issue in the case was whether, before appellant had sexual relations with prosecutrix, she had already become unchaste by indulging with another man. The testimony touching subsequent carnal acts did not tend to solve any controverted issue. If appellant was guilty of rape, it was upon the first act. No prosecution for such crime could have been predicated upon any act of intercourse occurring thereafter, as prosecutrix admitted that the first act was indulged in willingly by her. Appellant timely objected to the testimony of prosecutrix touching subsequent acts. The objection was overruled. Thereafter, as shown by bill of exception No. 17, he made a motion to the court requesting that such testimony be excluded and withdrawn from the jury. A special charge on the subject was timely and properly presented. The court declined to give it, but instructed the jury, in substance, that testimony of subsequent acts of intercourse could not be considered, if at all, "except for the light, if any, it might throw upon the act committed on December 29, 1926." This charge was timely and properly objected to, and request again made that said testimony be withdrawn from the consideration of the jury. The conclusion that the learned trial judge fell into error is supported by many authorities. McKnight v. State. 98 Tex.Crim. Rep., 265, S.W., 892; Rosamond v. State, 97 Tex.Crim. Rep.,263 S.W. 297; Rosamond v. State, 94 Tex.Crim. Rep.,249 S.W. 468; Cabana v. State, 111 Tex.Crim. Rep., 10 S.W.2d 997.
For the error discussed, the judgment is reversed and the cause remanded.
Reversed and 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.
ON STATE'S MOTION FOR REHEARING.