The offense is assault to rape, and the punishment is sixty years in the penitentiary.
The prosecutrix in the case was Zoenell Livingston, a little girl eight years of age. The transaction which was submitted to the jury, and for which the appellant was convicted, occurred in Smith-Tomlinson's hardware store in the town of Hillsboro. Prosecutrix testified that the appellant carried her upstairs, behind some stoves, and had an act of intercourse with her. She was corroborated as to this transaction to the extent that other witnesses testified that prosecutrix and appellant were in the store, upstairs, at about the time, but was contradicted by medical testimony as to the fact of penetration. The appellant did not testify in his own behalf and no direct denial was made by him as to the transactions in the hardware store testified to by prosecutrix.
With the record in this condition, the state proved by two witnesses that at another and different time they saw appellant and prosecutrix in a back alley in the town of Hillsboro, and at that time prosecutrix was sitting down with her clothes up and the appellant was on his knees in front of her, and that he had his clothes open and his hand on his penis and had an erection, and that he had his other hand up under the prosecutrix's clothes. This testimony was properly objected to by the appellant, in that it did not serve to illustrate or shed light on any issue involved in the case and was proof of other and extraneous crimes. We think this testimony, under the record in this case, was not admissible. It is entirely sufficient to have justified the jury in believing that the appellant and prosecutrix were just attempting to begin or had just ended an act of intercourse at the time the witnesses stated they saw this transaction, and the testimony as to the act for which the appellant was on trial being positive and no question of intent, system, or motive being involved in the case, we fail to see how this evidence of another and separate transaction in any manner shed light on any issue involved in this case. The exact question has been presented many times before this court, and in many recent decisions we have held that evidence of other acts of intercourse between the parties is not admissible. Rosamond v. State, 263 S.W. 297; Rosamond v. State, 263 S.W. 1067; Walker v. State, 281 S.W. 1070. It is useless to write on this question again. It is fully discussed in the cases above cited and in many others that might be collated. Under the authorities, in view of the severe penalty assessed in this case, we would not be warranted in ignoring the *Page 313 error committed in the admission of this testimony as being immaterial.
For the above error, 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.
ON STATE'S MOTION FOR REHEARING.