This is an appeal from a conviction for rape, the punishment being assessed at seven years confinement in the penitentiary.
The State proved by the witness Pafford that he saw Cummins the morning after defendant's arrest at the calaboose; he stated that defendant told him the previous night that he was going down to the wagon yard and have carnal intercourse with that woman, meaning prosecutrix. Defendant was not present at the time of this conversation but was in the county jail. Objection was urged that this was hearsay; that it was collateral to any issue in the case and inadmissible for any purpose, and could throw no light upon the transaction, and only served to prejudice the jury. The court qualifies this bill by stating that Cummins denied these statements, and they were admitted for the purpose of impeachment; and also because defendant when testifying as a witness denied making the statement. We are of opinion that this testimony should not have gone to the jury. When the witness Cummins denied making *Page 453 the statements, this was an end to the matter. The confessions, or declaration or admissions tending to incriminate defendant, or connect him with the rape should not be proved in this manner. Appellant was in no way responsible for the statement of Cummins, and any statement made by Cummins could not be introduced as evidence against defendant directly or indirectly.
Witnesses Cantrell and Land were permitted to testify that the husband made an assault upon appellant shortly after the alleged outrage of the prosecutrix — Cantrell being her husband. This occurred some time after the alleged outrage in a different part of the town. Various objections were urged to the admission of this testimony. The court says, by way of explanation, "that it was admitted as a circumstance to show that the husband believed that he had found the man who had raped his wife." This testimony is inadmissible, even for this purpose. If in fact the witness identified defendant, he could so state; but it was not necessary to go into the details of an assault made by the husband upon the defendant, in order to admit evidence that witness identified the assaulted party.
The testimony of the witness Cockrell to statements and conduct of the prosecutrix immediately after the alleged outrage was properly admitted. Defendant and his witness Cummins testified substantially to two main facts: (1) there was no rape, that it was an indecent familiarity on his part with the woman; and (2) that she was willing to his suggestion on condition of the payment of money. The matters testified by witness Cockrell occurred a very few moments after the defendant left the room, the scene of the alleged rape.
The remaining questions, as we understand the record, are without substantial merit.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.