In his testimony, the appellant, in great detail, described the conduct of the prosecutrix at the beginning of their acquaintance and soon thereafter, and as portrayed by him, her conduct indicated unusual boldness in seeking his society and a marked degree of immodesty in her enjoyment of it. Without entering into detail, her conduct towards him, as he related it, was of a nature not unlike that which was discussed in the case of Normal v. State, 89 Tex.Crim.
*Page 107 Rep. 330, wherein such testimony was held admissible upon the issue of unchaste character. In support of the principle recited in Norman's case, supra, are the following: Underhill on Crim. Ev., Sec. 381; Coons v. State, 49 Tex.Crim. Rep.; Snodgrass v. State, 36 Tex.Crim. Rep.; Creighton v. State, 41 Tex.Crim. Rep.; Davis v. State, 36 Tex.Crim. Rep.; Nolan v. State, 48 Tex.Crim. Rep.; Bailey v. State,36 Tex. Crim. 546; Barnes v. State, 37 Tex.Crim. Rep.; Parks v. State, 35 Tex.Crim. Rep..
At the request of the appellant, the court instructed the jury in substance that if the act of intercourse with the prosecutrix took place and if at that time she was more than fifteen and less than eighteen years of age and of unchaste character, an acquittal should result. Appellant insists that the requested instruction was warranted by the testimony of the physician who examined the prosecutrix after the alleged act of intercourse and who described her condition, which was such as to show that her female organ was swollen and the hymen was broken and other circumstances indicating that there had been recent pressure causing swelling and bleeding which had not, at the time of his examination, had time to heal. Inasmuch as this testimony relates to the condition after and not before the offense was alleged to have been committed, its pertinency upon the issue of previous want of chastity is not manifest. However, if it be conceded to have been relevant upon that issue, the same is true with reference to the conduct of the prosecutrix to which the appellant testified as occurring antecedent to the time of the alleged offense. As stated in the original opinion, the contradictory declarations imputed to the prosecutrix justified the receipt in evidence of testimony showing her previous declarations consistent with facts given upon the trial. The fact that some of her statements embraced in the bill of exceptions in which complaint was made of all of them may not have been admissible would not, as stated in the original opinion, be ground for reversal. See Payton v. State, 35 Tex.Crim. Rep.; Cabral v. State, 57 Tex.Crim. Rep 304, and numerous other authorities cited in Branch's Ann. Tex. P. C., Sec. 211.
The motion for rehearing is overruled.
Overruled. *Page 108