In connection with appellant's motion for rehearing it is shown that the bills of exception were in fact filed in the lower court within proper time, and also that the statement of facts is entitled to consideration.
We see no good to result from setting out in detail the facts, preferring to state our conclusions therefrom where necessary in discussing bills of exception.
The bill complaining of the refusal of continuance will not be considered. The question will not likely arise again, and the judgment must be reversed for other reasons.
It appears that prosecutrix was permitted to relate before the jury statements she made to her mother and others regarding the details of the alleged assault at a time so far removed from the transaction as not to be a part of the res gestae. This was error.
The alleged assault occurred on Wednesday. The mother of prosecutrix was permitted to testify over objection what prosecutrix told her in detail about the assault on Saturday following. We are not aware of any rule of law that would relieve such evidence from the rule of hearsay testimony. The general principal controlling under such circumstances will be found stated in Sec. 1784, Branch's Ann. Tex. P. C. with citation of authorities supporting the text.
The court was requested to give a special charge to the effect that if the jury believed appellant took hold of prosecutrix, or placed his arms around her without intention to injure her or her feelings, and with probable grounds to believe that such action would not *Page 119 be objectionable to her, they should acquit appellant. The court omitted from his charge any instruction whatever upon the subject. Appellant's evidence pointedly raised the issue. The requested charge should have been given. Shields v. State,39 Tex. Crim. 13, 44 S.W. 844; Kerr v. State, 83 Tex.Crim. R.,204 S.W. 107; Ritcher v. State, 93 Tex.Crim. R.,248 S.W. 373.
Appellant's motion for rehearing is granted, the judgment of affirmance set aside and for the errors pointed out the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.