Appellant was convicted of rape upon one Catherine Dubbs, and his punishment was assessed at death.
On the trial appellant proposed to prove that several years before the alleged rape the prosecutrix had given birth to an illegitimate child. This evidence was proposed for the purpose of impeaching the chastity of the prosecutrix. On objection by the prosecuting officer the evidence was disallowed, and defendant saved his bill of exceptions.
In prosecutions for rape it is unquestionably competent for the accused to impeach the character of the prosecutrix for chastity,— not, indeed, to justify or excuse the offense, but to raise a presumption that she yielded her consent and was not in fact forced. But the rule seems to be limited to general reputation for chastity and to acts of illicit intercourse with the accused alone, whilst specific acts with other parties than the accused are not competent and admissible as evidence. (Pefferling v. The State, 40 Texas, 492; Dorsey v. The State, 1 Texas Ct. App., 33; Rogers v. The State, 1 Texas *534Ct. App., 187; Jenkins v. The State, 1 Texas Ct. App., 346; Commonwealth v. Harris, 131 Mass., 336; State v. Daniel, 87 N. C., 507.)
A step beyond this has been taken by the supreme court of Tennessee in Benstine v. The State, 2 Lea, 169. In that case the rule announced by Mr. Justice Cowan in The People v. Abbott, 19 Wend., 194, is adopted, to the effect “ that previous intercourse with other persons may be shown as bearing directly upon one of the principal questions at issue, that is, whether the intercourse was by force or with consent of the injured female; and this for the reason that no impartial mind can resist the conclusion that a female who had been in the recent habit of illicit intercourse with others will not be so likely to resist as one who is spotless and pure.” (See same case reported in 3 Amer. Grim. Eepts. (Hawley), 388.)
However reasonable this latter rule may appear, with us the doctrine is too well established and understood otherwise, as stated above, to be now extended or interfered with. (Pefferling v. The State, 40 Texas, 492.) That rule makes general reputation and illicit acts with the accused alone admissible as evidence of want of chastity. That an unmarried woman has given birth to an illegitimate child, judging from the evidence which was subsequently adduced in this case, will not always affect her general reputation for chastity. Still such evidence is admissible on proof of “ general reputation” for chastity. It should not have been excluded in this case when proposed by defendant. Subsequently, however, it appears that all the facts and circumstances connected with the birth of this illegitimate child were fully drawn out by the prosecution through the same witness by whom they were proposed to be proven by defendant. Having subsequently been fully developed, defendant could not. possibly have been injured by the previous ruling excluding the evidence when offered by himself. And the error of the court in the first instance was entirely cured.
It seems that whilst this witness was upon the stand at the call of defendant, to testify as to the illegitimate child, and after the court at the motion of the prosecution had excluded his testimony, “ defendant then asked the witness what the general reputation of the prosecutrix before and since she had given birth to the bastard child had been for chastity. The witness answered that her general character for chastity had always been good so far as he knew.” This quotation from the bill of exceptions is made for the purpose of showing that defendant, though he was denied the right of evidence as to the illegitimate child, was not denied the right, but, on the contrary, had directly and positively put the general character *535of the prosecutrix for chastity in issue, by asking this question. Subsequently when the prosecution introduced a number of witnesses to prove her general good reputation for chastity, defendant objected,— the ground of objection stated being “ that he had not impeached the character of the prosecutrix for chastity.” This objection, as we have seen, is contradicted by the record.
In overruling this objection the judge remarked, and the remark was made in the presence of the jury, that “ if he (defendant) had not done so (that is, impeached her character) he had attempted to do so and failed.” Defendant saved a bill of exceptions to this remark of the judge as a comment upon the weight of evidence and one calculated injuriously to affect the rights of defendant before the jury.
Bearing upon this subject it is provided by statute that “ in ruling upon the admissibility of evidence the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it be admissible. Hor shall he at any stage of the proceedings previous to the return of a verdict make any remark calculated to convey to the jury his opinion of the case.” (Code Grim. Proc., art. 729.)
In this instance has the judge violated the spirit of this inhibition ? Has he commented upon the weight of the evidence and its bearing in the case? Let us see. The State proposed to prove general reputation for good character. Defendant’s counsel says: “I object because I have not impeached the character of the prosecutrix for chastity,” and the court replied, “if you have not done so you have attempted to do so and failed.” If defendant had not impeached her character, as he asserted, then it must be clear that the remark could not harm him, because it was not and could not be a comment upon evidence he had never offered. But, says the court, “ if you have not done so you have attempted to do so and failed.” We gather from this remark simply that the court stated as a reason for admitting the evidence that, whilst it might be true that defendant had not in fact impeached the witness, his attempt to do so and failure to do so had notwithstanding been sufficient to open up for investigation by the prosecution the question or issue of general reputation for chastity. In other words, that the issue having been attempted, it mattered not whether it was successfully or unsucessfully maintained,— that gave the other side the right to meet it and ventilate it fully. We do not understand the remark as a comment upon or disparagement of any evidence which defendant had introduced. If it could fairly and legitimately be so considered, then. *536we would not hesitate to say that it was not only irregular, but highly improper and illegal. (1 Bish. Crim. Proc., § 981; 3 Graham & Waterman on New Trials, 731; Barlter v. The State, 48 Ind., 163; State v. Breeden, 58 Mo., 507; Fitzgerald v. The State, 12 Ga., 213; Stuckey v. The State, 7 Texas Ct. App., 174; Gopeney v. The State, 10 Texas Ct. App., 473.)
“ The jury in all cases are the exclusive judges of the facts proved and the weight to be given to the testimony.” (Code Crim. Proo., art. 728.) “ The court, in the trial of a case before it, is presumed to be, and should be, an impartial arbiter as to the legal rights of the parties, and if competent evidence is submitted to the jury it is their exclusive province to consider that evidence without any expression of opinion by the court as to whether it is of much or of but little value.” (Warmack v. The Mayor, etc., 53 Ga., 162.)
In view of our statute, it would be well if judges, in ruling upon the admissibility of evidence, would severely abstain from anything beyond a simple announcement of the ruling. So far as we have been able to see in this particular instance, the irregularity does not amount to reversible error, if error it be.
As to the other bill of exception, with regard to the right of the State to introduce evidence of good character for chastity of the prosecutrix, the objection raised being that such evidence is inadmissible until the defendant has first impeached her character, such objection is not maintainable where an effort on the part of defendant has been made for this purpose. An attempt by defendant to impeach raises the issue sufficiently to warrant and justify the prosecution in the introduction of evidence upon the subject.
But again, it is insisted that fundamental error is apparent on the record in that it fails to show affirmatively that defendant, who was about being tried for a capital felony, was arraigned prior to being put upon his trial. (Code Crim. Proc., art. 508.) “ An arraignment takes place for the purpose of reading to the defendant the indictment against him, and hearing his plea thereto.” (Code Crim. Proc., art. 509.) “ The principal office of the arraignment is to fix the personal identity of the accused.” (Hendrick v. The State, 6 Texas, 341.) It has never been held, however, that the arraignment per se, as a prescribed method of procedure in capital cases, was a sine qua non to the validity of the conviction. A contrary dictum appears in Smith v. The State, 1 Texas Ct. App., 408, but the authorities cited in support of thé dictum do not warrant it, and in that case the record disclosed that the defendant had been arraigned, and also that he had pleaded. The correct rule is that, where there is *537neither arraignment nor plea, the case must be reversed, because the verdict is a nullity and no valid judgment could be rendered on it. (Early v. The State, 1 Texas Ct. App., 248; Holden v. The State, 1 Texas Ct. App., 225.) And if the record is silent as to both, the conviction will be set aside. (Lister v. The State, 1 Texas Ct. App., 739; Pringle v. The State, 2 Texas Ct. App., 300; Avaro, v. The State, 2 Texas Ct. App., 419.)
In the case under consideration the record is silent as to the arraignment, but affirmatively shows that the defendant pleaded “ not guilty.” In such a case the rule is as announced in Plasters y. The State, 1 Texas Ct. App., 673, to the effect that “if the record shows that the accused pleaded not guilty, but is silent respecting the arraignment, this court, presuming that an arraignment was waived, will not reverse the judgment of conviction for want of an arraignment; but if the record shows neither an arraignment nor a plea, the judgment would be set aside.”
Objections are urged to the sufficiency of the charge of the court, in that it omitted to instruct the jury as to the effect the want of chastity should have in considering of their findings, and that it omitted to instruct them upon the subject of penetration, and that the same must be established beyond a reasonable doubt. The charge is not, perhaps, as explicit as it might have been. Still, considered in the light of the evidence, we canot say that it lacks in any of the essential qualities demanded by the law and the evidence. In the sixth paragraph the jury were expressly required to find that defendant had “ penetrated the person of the said Dubbs, and had carnal knowledge and connection with her, without her consent,” before and as a prerequisite to a finding that defendant was guilty of rape as charged; and the reasonable doubt charged in the next succeeding paragraph applied to the whole case. In the absence of requested instructions presenting a fuller exposition of the law, we must hold that the charge upon this matter meets the requirement of the rule announced in Davis v. The State, 43 Texas, 189, cited by counsel in the brief. Ho exception was made to the charge, and we cannot see that any material error of omission or commission is contained in it, calculated injuriously to deprive defendant of any right, or to mislead or misdirect the jury in any matter essential to his rights.
As to the newly-discovered evidence claimed in the defendant’s motion for a new trial, suffice it to say that no amount of evidence as to the prosecutrix’s want of chastity should overcome proof of the fact that she was ravished by force, as shown by the violence or *538marks of violence upon her neck and other portions of her person, and her condition, mental and physical, immediately after the occurrence, as testified to by the witnesses. Rape may be committed upon the most notorious prostitute, and if the physical facts and personal violence are proven, it were worse than idle to attempt to rebut them simply by proof of want of chastity. The affidavit of the newly-discovered witness Wm. Johnson is certainly made to appear in most questionable shape by the several counter-affidavits submitted in behalf of the prosecution. Even should he have been sworn to what he deposes in his affidavit, we do not believe from the evidence disclosed in this record that his statements would appear to any impartial mind even probably true, or that they would have had any appreciable effect upon the result of the trial.
Issue was taken by the State upon the causes set forth in the motion for new trial, as provided by article 781, Code Grim. Procedure. The style and mode of expression used by the county attorney in his affidavits tendering the issue are perhaps obnoxious to the criticism of counsel for the defendant, and as matter of taste some expressions used had as well perhaps been omitted in consideration of the gravity of the questions involved. Still, the procedure was one pending alone before the judge, and where no injury could likely result to defendant.
We have given this record our most serious consideration, aided by the able brief of counsel for appellant, and we are constrained to say we have found no material error for which the judgment should be reversed. We are of opinion appellant has had a fair and impartial trial, and that his guilt of rape, one of the most heinous of the crimes known to the law, has been fully established, and consequently we believe the judgment, notwithstanding it is fraught with such serious consequences to appellant, should in all things be .affirmed.
Affirmed.
[Opinion delivered February 7, 1885.]