This case was affirmed at a former sitting of this court, and now comes before us on motion for rehearing.
Appellant insists the court erred in overruling defendant's fourth assignment of error, which shows he complains of the action of the lower court in permitting the prosecutrix to testify as follows: "I told my mother sometime afterwards, perhaps two weeks," in answer to the question of the county attorney who had asked the following question: "Did you tell your mother what had occurred between you and Will Saye down in the corn field?" The bill of exceptions presenting this matter shows the following: The county attorney, over objection of appellant, asked the prosecutrix the following question: "Q. Who was the first person you told about what occurred between you and Will Saye down in the corn field? A. I told my mother sometime afterwards, perhaps two weeks afterwards." Appellant objected to the question because it was *Page 432 leading and would suggest the answer; and he objected to the answer, first, because it was hearsay; second, because it was irrelevant and inadmissible, and in the absence of the defendant; and it was an attempt on the part of the county attorney to bolster up his witness before the jury, and was calculated to injure the rights of the defendant. The bill is approved with this explanation: "This question was asked by the State in redirect examination, the defense in the cross having asked witness, `Why she had not made complaint earlier,' and `why she did not cry out at the time she was assaulted.'" We do not think, after a further review of the question, that this testimony was admissible. Recent outcries are always admissible, but two weeks after the supposed offense is committed they are inadmissible. If the defense had attempted to prove statements contradictory of the witness' testimony on the trial, then the State could prove that she made statements similar to her testimony upon the trial contemporaneous with the alleged contradiction. It follows that the court erred in admitting this testimony.
Bill of exceptions No. 11 complains that the court erred in refusing to give the following special charge: "You are charged by the court that if you find and believe from the testimony that on or about the 15th day of July, 1906, the defendant, Will Saye, met the prosecutrix in a corn field some distance from the ends of the rows and near a tree, and you further find and believe from the testimony that said meeting was in pursuance of a previous understanding between the defendant and the said prosecutrix, and you further find that he took hold of her, and hugged her, and that he tried to pull up her clothes and that he tried to get her down on the ground, and had her around the waist, and you further find that it was with and by her consent, he would not be guilty of an aggravated assault; or if you have a reasonable doubt as to whether or not she objected to such conduct, he would be entitled to an acquittal." We think this charge should have been given. The charge of the court was not as full on this question as it should have been. The only charge given by the court was as follows: "You are charged that if you believe from the evidence that defendant and prosecutrix met each other by previous appointment, mutual and agreeable to both, in the cornfield at the time alleged and though you should find that he fondled her as charged, he would not be guilty." This is not as full a charge as ought to have been given under the facts of this case.
For the errors pointed out, the motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause is remanded.
Reversed and remanded. *Page 433