The indictment charges that appellant said of Mrs. Jennie Harris, that he, defendant, "caught E.W. Wall cracking her on a quilt on the floor." Appellant proposed to prove by John Magness, that he saw Wall and Mrs. Harris sitting on the ground, very close together, in the corner of the fence, about dark; that they were about 30 or 40 yards from Wall's house; that Mrs. Harris placed her hands over her face, and was, or seemed to be, crying. Appellant proposed to prove by James Dunn, that in the fall of 1891 witness, in Perry's pasture, while hunting, walked up on Wall and Mrs. Harris while they were in the act of carnally knowing each other; that "Wall came up to him quick, and excited very badly, and said, 'For God's sake, don't give me away,' and other like expressions." The county attorney objected to the testimony of Magness and Dunn, because irrelevant, and because it did not prove the truth of the specific act charged against defendant. The court sustained the objections, appellant reserving his bills of exceptions.
Were these facts competent evidence in this case? First. If Wall had carnal knowledge of his daughter at the time and place stated by appellant, appellant, had the right to prove it. Second. If Mrs. Harris had intercourse with her father, Wall, in Perry's pasture, the fall before, she ceased to be a chaste woman, and was, therefore, not the subject of slander, unless she had reformed; and the burden of proving reformation would, in such a case, rest with the State. If, indeed, she had connection with Wall in Perry's pasture, as was proposed to be proved by Dunn, this would have been a most powerful fact tending to prove that she had so conducted herself with Wall at the time and place stated by defendant. In Rex v. Hodgson, Russ. R., 211, these rules are stated:, (1) That the accused could not prove that the prosecutrix had had intercourse with other men; (2) but that he could prove that she had had intercourse with himself. All the authorities support the second proposition. Now, then, if such proof can be made in rape cases, with equal reason can it be made in the case in hand; the reason being, that having intercourse with her father a few months before the time stated by defendant, the probable presumption is that she repeated the act. This is a reasonable and rational presumption. We are of opinion that the court erred in rejecting the proposed evidence of Magness and Dunn. We would remark, that if a judgment should in any case be reversed because the State's counsel led her witnesses, this is the case. We suggest that this practice on another trial be not repeated.
Judgment reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 479