ted to get before the jury the advice of these | pear before the grand jury of Hill county. All people with reference to appellant's guilt. As of this was permitted to disprove the theory of we understand the majority opinion, the posi- the defense that the prosecution had been contion is taken that this testimony or conversa-cocted out of a spirit of malice, and that Pearl tion did not indicate the opinion of the grand- Thomas voluntarily appeared before lawyers in father and grandmother that appellant was Cleburne to institute prosecution; and that guilty. We do not believe that this view of the jury was instructed that the testimony adwhat the bill of exception shows is correct. mitted could not be considered by the jury as Mrs. Kirby stated that she told them all that any evidence of the guilt of the defendant." We she had heard and seen in Ft. Worth. Now, can readily see that after appellant had proved what she had heard and seen, at least as detail- by the witness Pearl Thomas, on cross-examinaed by her, and under the law declared by the ma- tion, the circumstances of the alleged rape, it jority, pointed to the guilt of three persons and would not injure appellant to prove the same three persons only, namely, Dr. Link, Mrs. circumstances by the witness Cleveland. But Fondren, and the appellant, the first two as it does not occur to us that this authorized the principals and appellant as accomplice. The state to prove by the witness Cleveland that he facts, from the standpoint of Mrs. Kirby, point-reported the matter to the county attorney of ed to the guilt of no other person. One who, Hill county, and that he did so in order to have on the facts as detailed by her, advised placing attachments issued for Pearl Thomas and her the whole matter before the prosecuting officers, mother to appear before the grand jury of Hill must have understood that, if her story was county, so as to inaugurate and expedite the believed by the officers, these three persons, or prosecution. This was an indirect way of getat least some of them and no other persons, ting before the jury the opinion of the county would be prosecuted. Therefore it seems clear attorney of Johnson county as to the effect of that when the grandfather and grandmother, the disclosures made by the witness Pearl Thomafter being told by Mrs. Kirby what she had as to him. The fact that the court instructed seen and heard at Ft. Worth, advised her to the jury not to consider said testimony as any place the whole matter before the prosecuting evidence of the guilt of defendant does not ocofficers, they must have believed her story, and, cur to us to have cured the vice of the admisbelieving it, must have believed Dr. Link, Mrs. sion of the testimony regarding the report of Fondren, and appellant guilty. No jury could the county attorney of Johnson county to the have understood otherwise. Evidently the jury county attorney of Hill county. If this testiwould have reason to believe that, in advising mony did not tend in some way to show the that the facts be placed before the officers, the guilt of appellant, it is difficult to see how the old people must have known that some one jury could regard it for any purpose. And might be prosecuted, and since the facts, as de- they would be liable to regard the fact that tailed by Mrs. Fondren, implicated Dr. Link, because, after Pearl Thomas disclosed to the Mrs. Fondren, and appellant, and no one else, county attorney of Johnson county the facts that they thereforo in effect advised the prose- regarding the rape, he thereupon immediately cution of these three persons, and, having ad- instituted the prosecution through the county vised their prosecution, must have been of the attorney of Hill county, that he believed the opinion they were guilty. testimony of prosecutrix and it made out a case against appellant; that is, that such was his opinion, and it may have served to strengthen the evidence of the prosecutrix before the jury.'

"The rule is general that the state will not be allowed in any criminal prosecution to place before the jury opinions directly or indirectly expressed with reference to the defendant's guilt. In many cases this court has announced and applied this well-settled doctrine, and in many of them the opinion was less directly expressed than it is here.

"In the Bennett Case, 39 Tex. Cr. R. 649, 48 S. W. 61, it was held to be error to prove by an officer that he had used every effort to ferret out the perpetrator of the offense; and thus, by inference, get before the jury the officer's opinion that the defendant was guilty. This presented a less direct expression of opinion than is presented in the case at bar.

"The case of Denton v. State, 46 Tex. Cr. R. 193, 79 S. W. 560, is in point. In that case the state in rebuttal placed Mason Cleveland, county attorney of Johnson county, on the stand and proved by him that the prosecuting witness was brought to his office on two different days, and that she first refused to disclose the facts of the case, and later that she did disclose the facts and divulge the name of the defendant, and he made a report thereof to the county attorney of Hill county. We quote as follows: "The court explains the introduction of this testimony, as follows: "That defendant on the cross-examination of the witness Pearl Thomas proved by her that she told of this act of intercourse with Denton to the county attorney of Johnson county, in Cleburne; that she first denied it; that on the second day they put her under oath, and she then admitted it; that she did not give defendant away until she was caught. In rebuttal the court permitted the state to place the county attorney of Johnson county on the stand and prove the facts stated in the bill. In this connection other testimony in the record showed that, after the county attorney of Hill county received a phone message from Cleburne, attachments were issued for Pearl Thomas and her mother to ap

"The case of Mercer v. State, 66 S. W. 555, also demonstrates that this testimony was inadmissible. In that case the state desired to show that one of its witnesses had acted in the capacity of a detective with reference to the prosecution involved. It appeared that this witness had gone into the joint business' at Burleson for the purpose of detecting appellant and another party. Over the objection of the defendant, the witness was permitted to state, and did state, that he engaged in the 'joint busi ness' and was engaged as a detective by one Jim Ellis for the purpose of detecting parties suspected of crime in Burleson, including the defendant and one John McGee. The trial judge qualified the bill of exception by stating that the testimony was admitted for the purpose of showing the capacity in which the witness act ed. This court held that, while it was per missible to show that he acted in the capacity of a detective, still it was not permissible, in this connection, to show that he had been employed by Ellis to detect appellant, because this fact indicated the opinion of Ellis that appellant was guilty.

"From Campbell v. State, 30 Tex. App. 649, 18 S. W. 410, we quote: We are also of the opinion that the court erred in permitting the declarations, statements, and advice given by three parties, to wit, his attorney, the district judge, and the district attorney to the state's witness J. R. Hartman in regard to his testimony; these statements and advice being whol ly irrelevant and not pertinent to the issues in the case. Such evidence was purely hearsay, and calculated to prejudice the defendant in the minds of the jury by impressing upon them the opinion of the district judge and the district attorney as to the importance of his testimony, and the necessity that it should be concealed or withheld until the final trial of the defendant.

McCracken v. State, 6 Tex. Anp. 507; Chumley, a sharp issue with reference to his guilt. The v. State, 20 Tex. App. 547; Maines v. State, 23 testimony introduced by him tended to show Tex. App. 568 [5 S. W. 123]; Nalley v. State, that he had absolutely no connection with the 28 Tex. App. 387 [13 S. W. 670].' abortion. The admission of this conversation "And again it has been held in many cases between Mrs. Kirby and the grandfather and that the state cannot, in meeting some legit-grandmother must have worked actual injury to imate issue, incidentally place before the jury the rights of appellant. This being true and an opinion with reference to appellant's guilt. the testimony being hearsay, the judgment See Holloway v. State, 54 Tex. Cr. R. 472, should be reversed. 113 S. W. 928; Barbee v. State, 50 Tex. Cr. R. 427, 97 S. W. 1058; Denton v. State, supra; Mercer v. State, supra; Cogdell v. State, 43 Tex. Cr. R. 180, 63 S. W. 645; Morton v. State, 43 Tex. Cr. R. 537, 67 S. W. 115; Jenkins v. State, 45 Tex. Cr. R. 178, 75 S. W. 312; Watson v. State, 50 Tex. Cr. R. 172, 95 S. W. 115. All hold that such testimony indicating an opinion with reference to the defendant's guilt is not admissible.

"It is further well established that, when such testimony has been gotten before the jury, the court cannot cure the error in admitting the testimony by undertaking to limit it in his charge. See Denton v. State, supra; Mercer v. State, supra; Parker v. State, 46 Tex. Cr. R. 469, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893; Cogdell v. State, supra. "Nor does the fact that the prosecuting attorney stated that this testimony was not being introduced for the purpose of connecting the defendant with the offense cure the error. We do not understand that a party can be allowed to get before the jury illegal and prejudicial testimony by merely stating that he does not intend to use it to establish his side

"Second. We further submit that the trial court erred in allowing the state to prove that Mrs. Kirby told the county attorney the same story she told the jury and will now discuss that point.

"After detailing her conversation between her grandfather and grandmother and her return to Ft. Worth, and the fact that she had made an appointment with the assistant county attorney, Mrs. Kirby was then allowed to state, over objection, that the assistant county attorney came to her residence and had a conversation with her with reference to the abortion. We will quote so much of the bill as is applicable to what we shall now discuss: 'Mr. Wilson: Q. Did you 'phone me and talk to me? A. Yes, sir; I done like they told me. I told them, "This is Pansy Kirby, J. R. Browning's granddaughter," and I told you I wanted you to come to my house, 1211 Gould avenue. Q. Did you tell me what it was about? A. I told you I had some important news to tell you; I didn't tell you what it was. Q. When I got there it was on Sunday? A. Yes, sir. Q. Did you tell me what you have testified here? A. Yes, sir.'

"In this connection, another bill of exception shows that while the witness James C. Wilson, assistant county attorney of Tarrant county, was on the stand, he was allowed to testify with reference to this conversation with Mrs. Kirby as follows: Mrs. some lady,

of the case. The testimony indicated the advice of the aged people to have appellant prosecuted. By fair, if not necessary, inference, it indicated their opinion that he was guilty. It was hearsay. No exception to the hearsay rule is pointed out justifying its admission, and the state was not entitled to get it be- I didn't know who it was at the time, phoned fore the jury by merely stating that it did not me one Sunday, the Sunday morning this girl intend to use it to establish appellant's guilt. made this statement, I should judge about 8 "The testimony was further injurious and o'clock, sometime along there; I cannot be cerprejudicial, in that it tended to bolster and sustain. Anyhow, I told her I would come. I tain the story of the witness Pansy Kirby be- didn't really catch the name; I did catch the fore the jury in an improper way. She testi- number, told me it was important. So having fied that she told her grandfather and grand- the number, I went over there and finally mother what she had heard and seen in Ft. found her; and then she told me who they were Worth with reference to this abortion, and they-I did catch, was the granddaughter of J. R. then advised her to go back home immediately Browning over there, people I had known. So and place all the facts before the assistant Mrs. Kirby told me what she had heard becounty attorney for his action. At that time tween Mrs. Fondren and the doctor just about they had not talked to any other member of the as related here to the jury, and also the confamily. They had not heard Mrs. Fondren's versation she related occurring between herself version of the affair. They had not heard ap- and Mrs. Fondren on that Friday.' This testipellant's version. They knew nothing about mony was admitted over appellant's objection it, except what was told them by Mrs. Kirby, that the same was hearsay and involved a transand on this, without further consultation with action and conversation had outside the presany member of the family, they were advising ence of defendant and which could not bind him. that the affair be at once placed before the "It should be recalled, in this connection, prosecuting officers. Evidently the jury must that no basis whatever had been laid for the have concluded that, knowing the several mem- introduction of this testimony undertaking to bers of the family, they had great confidence sustain Mrs. Kirby by proving that she had in the truth of the story detailed by Mrs. Kir- told the same story out of court that she was by, for on her story alone they were willing telling in court. The defendant had not, and to drag the whole family into court in connec- did not at any time during the trial, introduce tion with the commission of a disgraceful of any of her statements made out of court contrafense. dictory of her testimony on the stand. It is "As we have said before, this conversation true that the defendant introduced testimony between Mrs. Kirby and her grandfather and tending to show that for a long time she and grandmother and their advice to her is con- her husband had disliked him, and had for ceded to be hearsay. The learned counsel rep- many years entertained ill will toward him, resenting the state point out no exception to and had introduced the statements of her husthe hearsay rule justifying the admission of this band tending to show a desire for revenge. testimony. They merely say that it was prop- These matters are all fully set out in the maer, in rebuttal of the contention of appellant, jority opinion. As said in the majority opinto introduce this hearsay. In addition to be-ion, appellant contended that the testimony ing hearsay, the testimony was, as we have shown, highly injurious and prejudicial. "In this connection it should be recalled that the appellant has received the highest penalty of the law applicable to the offense with which he was charged. The facts set out in the majority opinion show that there was at least 169 S.W.-28

of Daisy Moore was induced and inspired by Kirby and wife from their corrupt motive, hostility to and hatred of him, and their, or Mr. Kirby's threats against him of vengeance. However, this ill will and desire for revenge had existed for many years and existed at the time these statements were made as well as

mony.

committed. It was two days after Mrs. Kirby | error was committed in admitting this testihad her last conversation with appellant, according to her testimony. At that time, and years before, according to appellant's contention, Mrs. Kirby and her husband had been very hostile toward him. He had opposed their marriage, and when, after having separated, they attempted to go back together, he bitterly opposed that step. Her husband had expressed, according to appellant's witnesses, a desire for revenge on appellant. It was the theory of appellant that, actuated by this long-continued hostility, and feeling a desire for revenge, the Kirbys had instigated this prosecution against him. Now, this being true, and this charge having been laid at the door of the Kirbys, was it permissible for Mrs. Kirby to introduce, in support of her testimony, her declarations made out of court in harmony with her testimony on the trial, at a time when the same motive to faisify existed? Clearly not. At the time she talked to the county attorney she was influenced by the same motives and influences to testify falsely against appellant that could have influenced her at the time of the trial. If appellant had committed any crime, it had been committed some time before her conference with the county attorney; and, if her testimony against him was influenced or induced by her hostility and desire for revenge, then her story to the county attorney was influenced and induced by the same motives or causes. Therefore, under the

rule laid down in the above-cited cases, this timony was not admissible. The rule is settled that it is never proper, in support of a witness who is charged with having testified under some corrupt motive or influence, to introduce the statements of the witness made out of court at a time when the same alleged corrupt motive or influence existed. This is recognized in all of the cases cited in the majority opinion, and is expressly declared in the Sanders Case and in the Conway Case, above referred to. See decision by Judge Hurt in last-mentioned case.

"Third. We next refer to the testimony of the witness James Wilson with reference to his first conversation with the prosecuting witness Daisy Moore. We do not deem it necessary, however, to discuss this part of the bill of exception at length. The majority has determined that since the defendant contended that the testimony of Daisy Moore was false and was inspired and influenced by Mrs. Kirby and her husband, and that they in turn were moved and actuated by their long-continued hostility to appellant, it was permissible for the state to show that, before the operation of the influence of the Kirbys, Daisy Moore had told a story to the county attorney similar to that detailed to the jury. Authorities are cited in the majority opinion holding that, where the testimony of a witness is assailed and it is asserted that the same is false and the result of some corrupt motive or influence, statements of the witness made out of court at a time before the existence of such influence are admissible to sustain him. This was the holding in Jones v. State, which is quoted from at length in the majority opinion. With that holding we have no disagreement. Applying the rules laid down in that case and the other cases referred to, it is clear to us that fore discussed, was not admissible. the testimony of Mrs. Kirby, which we have be

"Now, with reference to the witness Daisy tes-Moore, the record does not show that the statemade before the existence of the influence of the ment made by her to the county attorney was recited in one of these bills of exception, that Kirbys over her. The record shows, and it is conversation with Daisy Moore Mrs. Kirby had on Friday before the county attorney had this one over to see her at the home of a Mrs. Mrs. Kirby on this occasion is not shown. Chancelor. What occurred between her and Her statement to the county attorney was made two days after this conference with Mrs. Kirby, and therefore it cannot be said that the statement was made before the Kirbys had had an opportunity to influence her with reference to her testimony. On the contrary, the record shows, as above stated, that her conference with the county attorney was two days after Mrs. Kirby had had a conference with her. We therefore submit that under these circumstances the testimony of the assistant county attorney, in effect, that she told him the story that she had told the jury, was not admissible; for it was not shown to be a statement made at a time before she could have been influenced by the Kirbys. The appellant contended that her testimony was caused and induced by the influence of the Kirbys. This being true, her statements in harmony with her testimony on the trial, made at a time before she could have been influenced by the Kirbys with reference to her story, would have been admissible. But the statement made to the county attorney does not come within this class, and therefore the rule laid down in Jones v. State does not apply. See Sanders v. State, 31 Tex. Cr. R. 529, 21 S. W. 258; Conway v. State, 33 Tex. Cr. R. 327, 26_S. W. 401; Anderson v. State, 50 Tex. Cr. R. 136, 95 S. W. 1037; Millsaps v. State, 42 S. W. 991.

"The question now arises: Was the admission of this testimony injurious to appellant? In determining this it should be recalled that the state's case rested, as stated in the majority opinion, on the testimony of Daisy Moore and Pansy Kirby. Mrs. Kirby testified to the agreement between Mrs. Fondren and the doctor to have the abortion produced. She further testified to two conversations with appellant after the abortion had been produced. In both of these conversations, as detailed by her, he indicated a guilty knowledge of and a guilty connection with the affair. In the second conversation and the one with reference to which Mr. Wilson was allowed to testify that Mrs. Kirby told him the same thing she told the jury, appellant, according to Mrs. Kirby, practically confessed to her that he had been having illicit intercourse with Daisy Moore. She charged him with this fact, and he not only did not deny it, but told her that it was none of her "darned business." The whole conversation is set out in the majority opinion, and clearly was one of the most incriminating circumstances introduced against appellant. He denied both of these conversations. They are attested by no witness other than Mrs. Kirby. He further explains himself, and through his other witnesses, "However, even if there should be any doubt in a satisfactory way, his presence in Ft. Worth with reference to the admissibility of the testias having nothing whatever to do with the abor-mony of the county attorney with reference to tion, and the testimony of Mrs. Kirby was the his conversation with the witness Daisy Moore, only testimony tending to show that his pres- it is clear that the testimony of Mrs. Kirby ence in Ft. Worth had any connection with the with reference to the conversation between hercrime. Therefore it is clear that the error of self and her grandfather and grandmother, and the court in permitting the state to prove that between herself and the county attorney, and Mrs. Kirby had told the county attorney the the testimony of that official with reference to same story she told the jury was highly preju- his conversation with her, was not admissible. dicial. Further discussion of this point, we be- And the error of the court with reference to lieve, is unnecessary. It is clear to us that, this testimony being clearly reversible, we do under this record, and the authorities cited in not feel it necessary to discuss the testimony the majority opinion and cited by us, reversible of the witness Wilson with reference to his con

no question to that effect was asked. In fact, appellant himself testified, on cross-examination, that her reputation was good in these respects and that he had always considered her a pure and moral girl. Appellant objected to the admission of this testimony on the ground that he had made no effort whatever to assail her reputation in the respects inquired about, and that the same had been in no wise put in issue.

versation with Daisy Moore at length. The ter Daisy had told her at the time she told her other bills clearly disclose reversible error. of her state of pregnancy that she had had in"The instruction of the court limiting all of tercourse with several and did not know who this testimony to use for a particular purpose was responsible for her condition. It is true was wholly unavailing. See Denton and Mer- also that in this connection various members cer Cases, hereinbefore discussed. The testi- of the family testified to her staying out late mony of Mrs. Kirby with reference to her con- at night. No evidence was introduced, howversation with her grandfather and grand-ever, to the effect that her general reputation mother and their advice to take up the matter for virtue, chastity, or morality was bad, and Iwith the officers was not admissible for any purpose, but was irrelevant to any issue in the case; it shed no light whatever on the issue with reference to the guilt of appellant; it merely informed the jury that the grandfather and grandmother had advised his prosecution. This fact was not only immaterial, but could under no view of the record have become material. We do not understand how the fact that some person had advised his prosecution could under any possible state of the record "In this connection it should be recalled that have become admissible against the defendant. the state contended that appellant, and appelAgain, the testimony of Mrs. Kirby and that lant alone, was responsible for the ruin of of the witness Wilson with reference to a con- Daisy Moore. The state introduced testimony versation with him was wholly inadmissible to this effect as tending to show motive on the for any purpose as we believe we have shown, part of appellant for the abortion. Appellant and, being admissible for no purpose, it could denied not only having anything to do with not be properly limited to any particular pur- the abortion, but also denied the motive, namepose. The fact that Mrs. Kirby told consistently, denied having had intercourse at any time stories about the affair did not in any wise with the prosecuting witness. To meet this tend to show that she instituted the prosecution issue, and to disprove the contention of the in good faith, or that in her activity against state that he. was responsible for the pregappellant she was not actuated by ill will or nancy of the witness Daisy Moore, appellant revenge. In fact, if she was actuated by these introduced the testimony of his wife that Daisy motives, it is more than likely that her state- Moore had stated to her that she had had inments, being preconceived and the result of tercourse with several persons. This testimony deliberation, would be consistent. It was per- also served to contradict and traverse the tesfectly proper for the state to introduce testi- timony of Daisy Moore that she had had inmony tending to show the fact, if it was a tercourse with no person other than appellant. fact, that Mrs. Kirby and her husband had not This was purely defensive testimony, and the talked to the witness Daisy Moore with reference mere fact that it incidentally tended to show to her testimony. The state might have also that the witness Daisy Moore was unchaste shown on this issue that the Kirbys were not un- and not virtuous did not authorize the introfriendly toward appellant. They might have fur-duction of testimony of her general reputather proven by the county attorney that he instituted the prosecution independently of any statement made to him by the Kirbys. But on this issue it was not permissible for the state to prove that Mrs. Kirby had told consistent stories with reference to the affair. This did not tend in any wise to exculpate her from the charge laid at her door by appellant.

"We therefore submit that the trial court allowed the state entirely too much scope in meeting this issue. Even if appellant did charge the Kirbys with instigating this prosecution and with influencing the prosecuting witness Daisy Moore, they were not entitled to exculpate themselves from the charge by the use of hearsay testimony any more than appellant was entitled, with hearsay, to exculpate himself from the charge in the indictment. The court should have confined the Kirbys, in meeting the charge made against them by appellant, to the use of proper and legitimate testimony. They were not entitled to undertake to meet this charge with hearsay.

tion in rebuttal. We quote the following from Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. 1043: We understand the doctrine now to be established, before evidence of general reputation as to some characteristic of a deceased person can be offered by the state, this matter must be first put in issue by the defendant by offering testimony of that reputation. It is not sufficient merely that because of the defendant's testimony concerning the homicide some characteristic of deceased may be brought out or made to appear. In this case appellant offered positive testimony to the effect that deceased had debauched the wife of appellant, which would indicate that he was not a person of good character for virtue. But this did not justify the state, in order to meet this, to resort to evidence of the general reputation of deceased as to virtue and chastity. The state could not thus meet this proof by positive evi dence with proof of general reputation, and would be only authorized to introduce evidence of general reputation of the deceased in the respect offered, when appellant himself had first assailed the state's case by proof of deceas ed's general reputation. Graves v. State. 14 Tex. App. 113; McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672; Kennedy v. State, 140 Ala. 1, 37 South. 90.'

"Fourth. Aside from the matters before discussed, appellant has brought forward and again presented in his motion for rehearing all the questions originally presented in his motion for new trial in the lower court. There is one of these matters that we believe discloses reversible error and will briefly discuss. "Other authorities might be cited, but it is "The tenth, eleventh, twelfth, thirteenth, and deemed unnecessary. Appellant was entitled to fourteenth assignments of error assign error on traverse the testimony of the state that he and the action of the trial court in permitting the he alone had had intercourse with the witness state, over objection of defendant, to prove by Daisy Moore. He was also entitled to traverse various witnesses the general reputation of the testimony of the state that he and he alone the prosecuting witness Daisy Moore in the was responsible for her pregnancy. The mere community where she lived with reference to be- fact that his defensive testimony on these issues ing a moral, chaste, and pure girl. It is held tended to show that she was unchaste and not by the majority that this testimony was admis- virtuous did not authorize introduction of tessible upon the ground that appellant in mak-timony on the part of the state that her gening out his defense had assailed the virtue and eral reputation for these characteristics was chastity of the prosecuting witness. It is true good. that appellant's wife testified that her daugh- "We think this case comes squarely within