This appeal is from a judgment of conviction for rape, the punishment assessed being confinement in the State penitentiary for thirty-nine years.
The sufficiency of the indictment is questioned by a motion in arrest of judgment, the objection being that it is not signed by the foreman of the grand jury. It is no *556longer an open question in this State that the objection is not tenable, either as an exception to the form or to the substance of an indictment or information, that the one is not signed by the foreman or the other by the county attorney or the attorney representing the State. It is true that in prescribing the requisites of an indictment, art. 420, Code of Criminal Procedure, states in clause 9 that it shall be signed officially by the foreman of the grand jury; yet, when the Code provides the exceptions which may be taken to the form of an indictment or information, the want of the signature of the foreman of the grand jury, or, in case of an information, the want of the signature of the attorney representing the State, is specially excepted from the other grounds of objection which may be reached in this manner. Art. 529.
These two provisions of the Code of Procedure are found in the last revision of the Texas Codes. On examination it will be found, however, that the language employed in the revised articles is identical with former provisions with regard to the present inquiry, and hence adjudications under the former statutes apply with equal force to the present provisions. By former decisions it has been uniformly held that the fact that the foreman of the grand juiy had omitted to sign his name officially to an indictment was wholly immaterial so far as the accused is concerned, though the signature is commendable so far as the regularity of the the proceedings before the grand jury is concerned; and these decisions are in harmony with the evident meaning of the provisions of the Code cited above. See the cases collated in Campbell v. State, 8 Texas Ct. App. 84. But, further, the objection here raised to the indictment is one not of substance but one of form merely, and hence not available by motion in arrest of judgment. Jenks v. State, 5 Texas Ct. App. 68. The particular objection urged against the indictment in this case, however, is not available to the de*557fendant, as an exception either to the form or the substance of the indictment. The court below did not err in overruling the defendant’s motion in arrest of judgment.
On the trial a bill of exceptions consisting of two separate, independent paragraphs was reserved to rulings of the court on the evidence. The first paragraph of the bill recites that testimony which to our minds was wholly irrelevant was permitted to goto the jury over objections of the defendant’s counsel, which testimony, if stripped of the attendant circumstances, would have been erroneously admitted and would doubtless have been excluded by the judge presiding. It is, however, shown by a statement of the judge, appended to this paragraph of the bill of exceptions, that the door to the admission of the questionable evidence was opened by the defendant on the cross-examination by the defendant’s counsel of the prosecuting witness, the party upon whom the offense is alleged to have been committed, eliciting evidence similar in character to that complained of. In this ruling we find no error.
In the second part of the bill of exceptions it is recited that the defendant offered proof of his general character, by witnesses who had known him for ten years and knew his general character; which the- court refused to permit, on objection of the prosecuting attorney. In this ruling we are of opinion the court erred. Coffee v. State, 1 Texas Ct. App. 584. The defendant was entitled to place the weight of his character into his end of the scale,— the inquiry being directed to the probability that he would commit the crime charged against him,— for what it was worth in the estimation of the jury, in connection with the other facts in evidence. The State would not ordinarily be permitted to introduce proof of the general bad character of* a defendant on trial. The defendant may introduce evidence of general good character, and having done so the State would then be entitled to disprove the *558evidence of good character by the means at hand in rebuttal.
To render evidence of the good character of the defendant available to him the examination should embrace the idea whether one of good character would likely commit the particular offense for which he was being tried, or as Mr. Greenleaf expresses it: “The evidence, when admissible, ought to be restricted to the trait of character which is in issue; or, as it is elsewhere expressed) ought to have some analogy and reference to the nature of the charge, it being obviously irrelevant and absurd, on a charge of stealing, to inquire into the prisoner’s loyalty, or on a trial for treason to inquire into his character for honesty in his private dealings.” 3 Greenl. Ev. § 25. It must be borne in mind, however, that it is not in all public prosecutions for breach of law that evidence of a party’s general character is admissible. The rule seems to be that whenever, in a criminal prosecution, guilty knowledge or criminal intention is of the essence of the offense, evidence of the general character of the party is relevant to the issue and therefore admissible; but when a penalty is claimed for the mere act, irrespective of the intention, it is not. 3 Greenl Ev. § 26. It will be observed that Mr. Greenleaf deduces the rule from Chief Baron Eyre, quoted as having said that in a direct prosecution for a crime such evidence is admissible, but when the prosecution is not directly for the crime, but for the penalty, it is not. See authorities cited in note 1 to the section last quoted. In our opinion a defendant, when charged with and on trial for crime, is at liberty to put his general character in evidence if he so desire, with the limitations . above stated, and subject to the right of the State to rebut the proof so offered. Lockhart v. State, 3 Texas Ct. App. 567.
The third paragraph of the charge is as follows: “If you believe from the evidence that the said Katv Tern*559pleton was unwilling to have sexual intercourse of a carnal nature with the defendant Sandy Jones, but that she acquiesced and did permit defendant to have carnal knowledge of her person under fear of death or serious bodily injury, induced by threats made against her or to her by .the defendant, then you are instructed that in law such carnal knowledge of her person was without her consent, and the defendant in such case would be guilty of rape.” The charge in the indictment is that the defendant, after making the assault, “her, the said Katy Templeton, then and there by force and by threats, and against her will, feloniously did,” etc.
By force and by threats, the indictment charges. ” The testimony of the injured female is to the effect that both force and threats were employed by the defendant in the accomplishment of his purpose. The charge should have informed the jury with reference to the feature of force employed, as laid down in the statute (Penal Code, art. 529), to wit: that it must be “such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and other circumstances of the case.” And on the subject of threats the jury should have been instructed that the threats used in order to effect the purpose of the defendant “must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength, and all other circumstances of the case.” Penal Code, art. 530. These additions to the charge seem to be indicated by the Code in order that the jury might be enabled to understand what is meant by the terms force and threats, as a part of the law of the case, and should have been given, whether asked or not, especially in so grave a felony as the present. Jenkins v. State, 1 Texas Ct. App. 346.
Other errors are assigned, but which it is not deemed *560important to consider at present, for the reason that they are deemed unimportant or susceptible of easy correction on another trial. For error in the rulings on the evidence, and because of the omission in the charge as above set out, the judgment must be reversed and the case remanded for a new trial.
Reversed and remanded.