The offense is rape; the punishment, confinement in the penitentiary for five years.
It was charged in the indictment, in substance, that appellant had carnal knowledge of Alma Bell Walton, a female under the age of eighteen years. It was undisputed that prosecutrix was between seventeen and eighteen years of age. In the charge the court submitted the issue as to whether prosecutrix was of previous chaste character.
Prosecutrix testified, in substance, as follows: She had known appellant for approximately three months. On the occasion of the transaction resulting in the indictment she had been with appellant from six o’clock in the evening until three o’clock the next morning. She and appellant had gone to a party with several other young people. Several of the young men and women became drunk. Prosecutrix and appellant did not drink any of the liquor, although on occasions prosecutrix had drunk whisky and one one occasion had become drunk. After the party appellant carried the other people home in his automobile, but instead of complying with the request of prosecutrix that he take her home he drove down an alley and stopped his car. Appellant sought to have sexual intercourse with
Prosecutrix’s mother corroborated her testimony as to her physical condition and the condition of her clothing immediately after the alleged assault.
The physician referred to in the testimony of prosecutrix testified that he remembered prosecutrix coming to him with the statement that her arm was sore. He said he told her to put it in a sling.
Testifying in his own behalf, appellant admitted that he had sexual intercourse with prosecutrix and declared that she had voluntarily engaged in the act with him. He said that prosecutrix had previously promised to bestow sexual favors upon him. He testified that he had no difficulty in penetrating prosecutrix’s private parts. He declared that he had not twisted prosecutrix’s arm. He said prosecutrix told him she. had hurt her arm.
Clarence Schultz had been summoned by the state as a witness. Appellant’s counsel talked to the witness prior to the trial and was advised by him that he knew nothing about the case. He refused to divulge to appellant’s counsel the nature of his testimony. After the state and appellant had closed their testimony and before the charge had been read to the jury appellant was informed by a third party that if he would call Schultz as a witness he would give testimony very material to his defense. Upon request by appellant’s counsel, the court permitted the case to be reopened. Schultz being called as a witness, testified he had spent the night in a tourist camp in Hobart, Oklahoma, with prosecutrix; that he had slept in the same bed with prosecutrix and had had intercourse with her on that night.
In his motion for a new trial appellant set up newly discovered evidence, it being averred in the motion that immediately after the trial appellant’s counsel went to Hobart, Oklahoma, for the purpose of talking
There appears to have been no question as to diligence. While in a sense impeaching, the testimony the witnesses would give is admissible as original evidence on the question of the chastity of prosecutrix. See Foreman v. State, 61 Texas Crim. Rep., 56, 134 S. W., 229.
As to the question of the testimony being cumulative, we quote the rule announced in Riojas v. State, 36 Texas Crim. Rep., 182, 36 S. W., 268, 270, as follows: “There are often various distinct and independent facts going to establish the same ground on the same issue. Evidence is cumulative which merely multiplies witnesses to any one or more of those facts before investigated, or only adds other circumstances of the same general char
It is not clear that the newly discovered evidence is purely cumulative. In any event, we think this case is within the holding in Spencer v. State, 69 Texas Crim. Rep., 92, 153 S. W., 858. In that case it was said: “Viewing the record as a whole, we do not think this alleged newly discovered evidence can be said to be only cumulative in the legal sense of those words; but, if it should be so held, then this case presents one of those rare instances where the evidence adduced on the trial renders it questionable as to whether appellant is guilty of any wrongdoing; and, while we would not feel authorized to disturb the verdict on account of this conflict in the testimony, yet a new trial should be granted to enable appellant to place before a jury of his countrymen this additional testimony, coming, as it does, from a credible source, before being branded as a felon. While the interests of society require that those who violate the law shall be punished and restrained, yet the state desires no innocent man to suffer, and a greater crime is committed against society when a person, guilty of no offense, is wrongfully made to wear prison stripes than when one guilty is permitted to escape.”
See also Long v. State, 77 Texas Crim. Rep., 426, 179 S. W., 564; Gainer v. State, 89 Texas Crim. Rep., 538, 232 S. W., 830; Eppison v. State, 82 Texas Crim. Rep., 364, 198 S. W., 948.
The issue as to whether prosecutrix was of previous unchaste character was closely contested. The facts proposed to be proved by the witnesses are inconsistent with the state’s case. In the light of the record, we are unable to say that it is not reasonably probable that the testimony mentioned would have produced a result more favorable to appellant. See Flewellen v. State, 113 Texas Crim. Rep., 22, 18 S. W. (2d) 1087.
The judgment is reversed and the 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.