Offense, rape; penalty, ten years in the penitentiary.
This is a companion case to that of Davis v. State, reported in 116 Texas Crim. Rep., 558, 28 S. W. (2d) 168.
The prosecutrix, Mildred Brock, was a girl about sixteen years old, residing with her parents in Chillicothe, Texas, at the time of the alleged commission of the offense. In company with her sister, Ellen Brock Tedder, and two young business men of Chillicothe, prosecutrix left Chillicothe at night to go to McLean, where her fiance and many of her relatives resided. They arrived at Shamrock in an automobile at about four A. M. in the morning and in passing through that city were stopped and arrested by appellant and one Davis and all of them charged with vagrancy. The two young men paid the fines of the girls, but being without sufficient funds to pay their own, were thrown in jail by the two officers. Testimony for the state further shows that these officers assaulted and beat one of the male companions of prosecutrix at the time of their arrest. Prosecutrix and her sister further testified in substance that after the- officers had imprisoned their two male companions they were taken out into the country by them, their lives threatened and both were ravished by the two, it appearing that prosecutrix was raped by both Davis and Johnson. On this trip into the country the officers were in possession of and drank whisky and according to prosecutrix, forced them to drink; that a square glass jar was dropped out on the ground on the trip, as well also as some chewing gum wrappers, a blank cartridge and Camel cigarettes. Witnesses searching the route traversed by them after the date of the alleged offense, found these articles. Other witnesses testified to having seen the officers with these two girls in a car.
Appellant denied the rape, but admitted that he and Davis took the two girls over to McLean to their relatives. He further testified that officers at Childress had telephoned him that there was a car with a couple of boys and girls in it drunk headed towards Shamrock and that he had better investigate them. He further introduced witnesses to contradict the testimony of prosecutrix and her sister to the effect that they were taken out in the country by the officers on the morning of the offense.
Complaint is made that appellant was forced to testify that he had made no effort to get hold of the officer at Childress who telephoned him about the four young people, as detailed above; that they were not at court and that he had not been over to Childress to find out who they were. The objection seems to have been that appellant was not responsible for their absence. The appellant saw fit to introduce as a circum*515stance justifying his conduct the fact that officers telephoned him from Childress but did not give their names. We think it was entirely permissible for the state to show that he failed to call these officers to corroborate his testimony upon this material matter and had not even tried to find out their names. It was clearly a circumstance which tended to discredit his testimony.
Exception was lodged to paragraph 8 of the court’s charge because same was too restrictive and upon the weight of the evidence. Paragraph 8 is in the following language: “The witness, Leon Tedder, was permitted to testify in this case that during the month of December, 1928, he slept with the witness Ellen Brock Tedder all night. You are instructed that if you believe the said Leon Tedder slept with the said Ellen Brock Tedder, as testified to by the said Leon Tedder, then you may consider said testimony for the purpose of passing upon the credibility of the witness, Ellen Brock Tedder, and the weight to be given to her testimony, but you must not consider it for any other purpose.”
Instead of limiting the testimony as the court did, he should have stricken it from the record. Appellant got more from the testimony and from the charge than he was entitled to under the law and is in no position to complain. Specific acts of misconduct which have not eventuated in an indictment for a felony or misdemeanor involving moral turpitude are not admissible to discredit a witness. Branch’s P. C., sec. 168. The testimony of Leon Tedder was not admissible as has been held in a multitude of cases. Of similar testimony it was said by Judge Hawkins in the case of Hays v. State, 90 Texas Crim. Rep., 360, 234 S. W., 898, 901: “That specific acts of an immoral character with other parties cannot be shown as affecting the credibility of a female witness has been announced many times by this court, and is not an open question.” Citing Bigliben v. State, 68 Texas Crim. Rep., 530, 151 S. W., 1044; Scott v. State, 79 Texas Crim. Rep., 474, 185 S. W., 994; Sapp v. State, 80 Texas Crim. Rep., 363, 190 S. W., 489; Jennings v. State, 80 Texas Crim. Rep., 450, 190 S. W., 733; Flewellen v. State, 83 Texas Crim. Rep., 568, 204 S. W., 657; Branch’s Ann. Pen. Code, sec. 168.
Nor was its admissibility affected by her denial of the transaction. A witness may not be thus impeached upon a collateral and immaterial matter. Underhill’s Crim. Evidence, sec. 376; Branch’s P. C., sec. 165 and 178.
The testimony shows that appellant and his companion Davis both had intercourse with prosecutrix and it is insisted that the state should have been required to elect upon which of these acts it was asking for a conviction. The case of Johnson v. State, 110 Texas Crim. Rep., 292, 8 S. W. (2d) 121, is cited as sustaining appellant’s contention. The Johnson case is obviously distinguishable from this case since the appellant in that case was tried and convicted on the theory that he was a principal. *516In this case no charge on principals was submitted. Appellant was tried for his own act under the instructions of the court and could not have been convicted for the act of Davis upon the theory that he was a co-principal with Davis. The charge in the instant case, as it did in the case of Coots v. State, 110 Texas Crim. Rep., 105, 7 S. W. (2d) 539, excludes the idea that appellant was convicted as a principal for the act of his co-conspirator Davis. If it could be said that the jury may have convicted appellant either for his own act or that of his co-conspirator Davis, an election was necessary. It is sufficient answer to the contention of the appellant that a conviction was authorized upon no such theory.
The chewing gum wrappers, etc., detailed above were found by witnesses some three or four weeks after the date of the alleged rape. The testimony of their finding was objected to as being too remote. The objection went to the weight and not the admissibility of the testimony. Hickey v. State, 51 Texas Crim. Rep., 230, 102 S. W., 417.
This record shows that the state attached much importance to the fact that prosecutrix, Mildred Brock, made a statement detailing the facts of the offense to the county attorney in Wheeler county and that several days later her sister, Ellen Brock Tedder, made a statement to the same officer in Chillicothe, some distance away from Wheeler county, without having communicated with Mildred Brock about the contents of her statement. Such testimony was originally introduced by the state. It was apparently the theory of the prosecution that the statement of each of these witnesses was true because they agreed in all material parts without opportunity of consultation or fabrication and was therefore a strong circumstance of guilt. It was the theory of appellant that the testimony of these young ladies was a fabrication and was probably the result of an agreement between them and the two young men to file a suit for damages against the sheriff on account of the acts of his deputy, the appellant in this case. The appellant introduced some facts and circumstances tending to show that the original statement of Mildred Brock to said officer had in fact been communicated to her sister, Ellen Brock Tedder, at the time of the latter’s statement. With an issue thus made as to whether the contents of the former’s statement had been conveyed to the latter, the district attorney took the witness stand and over objection testified: “I can state positively that no information of the contents of this statement was conveyed to them (referring to the Brock family and Ellen Brock Tedder) nor did they have an opportunity to get the information.”
This conveyed to the jury the statement of a fact which was clearly an opinion and a conclusion of the district attorney upon a disputed and material issue. The facts and circumstances introduced by appellant clearly show that the contents of the statement of her sister may have been communicated to Ellen Brock Tedder prior to the time she gave the statement to the officer. Although the testimony of prosecutrix and her *517sister shows outrages committed upon them by appellant and Davis that if true were of a diabolical character, they both remained silent for several days after the outrage, although they had an opportunity to communicate same to their relatives and friends. We regard the issue of guilt as close and here express no opinion as to the sufficiency of the evidence further than the above. The testimony of the district attorney, quoted above, might not under other facts and circumstances be sufficient to cause a reversal, but under the particular facts of this case it may have been sufficient to convince the jury of the truth of the state’s testimony and cause them to either convict the appellant or enhance his penalty.
Though not raised in the trial court or presented in argument, the facts of this case seem to raise the issue of passive acquiescence by prosecutrix. Stringer v. State, 102 Texas Crim. Rep., 333, 278 S. W., 208. We say this in view of another trial.
Because of the error discussed, the judgment of the trial court is reversed and 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.