This case is before us on appellant's motion for rehearing. Upon a more careful consideration, we have concluded that the motion must be granted. Appellant's 14th bill of exceptions sets out certain remarks of the Assistant County Attorney, in his argument to the jury, which are as follows: "Who is responsible for her fallen condition? We say the defendant and no other, because when the State rested its case, the defendant offered no testimony. . . . I say there is no testimony except as offered by the State . . . Talk about fulfilling the promise: She is absolutely uncontradicted. There is no evidence here to impeach her virtue. The greatest corroboration, the highest, is the little one! Ask me for corroboration! that infant that was born on the 28th day of May" ___.
In addition to his bill of exceptions to this argument, appellant presented to the trial court his special charge, set out in our former opinion, to the effect that the fact that a child was born to prosecutrix, was not corroborative evidence that appellant was the father of the child, etc. We overlooked the attitude toward each other, of this charge and the matters embraced in the 14th bill of exceptions supra; and now conclude that the said argument was improper, and that said charge should have been given. We have held in several cases that the birth of a child is not corroborative of any fact except that the prosecutrix has had carnal knowledge of some one. It was improper to state to the jury that she was corroborated by said child. Stapp v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 941; Woolley v. State, 96 S.W. Rep., 27; Gray v. State, 43 Tex. Crim. 300; Barnes v. States, 37 Tex.Crim. Rep..
The motion is granted, the affirmance set aside, and the cause remanded for a new trial.
Reversed and remanded. *Page 604