HURT, Presiding Judge.
Appellant was convicted of rape, and his punishment assessed at death, and he prosecutes this appeal. Upon the trial, over the objection of the appellant, the State ivas permitted to
ove the following facts, by T. C. Nunn, sheriff of Brazos County:
That on Monday, after the alleged rape of Fannie Polazo, and after defendant had been arrested for said offense, he placed defendant and eight other negroes in a line in the jail of Brazos County, and then brought Charley Polazo into said jail, and that he identified and pointed out defendant as the man who had committed the rape upon Fannie Polazo. The State was also permitted to prove by Sheriff Bunn, that at the same time and place, and under the same cireumstaneés, Fannie Polazo, the prosecutrix, was carried into the jail, and she identified and pointed out the defendant as the man who had raped her and bit her thumb; and that the said Fannie fainted, and would have fallen had she not been caught and held up by others. These facts were introduced in evidence as original testimony. Were they admissible as original testimony? On "the next morning after the rape, the prosecutrix related what had occurred to her brother-in-law, Joe Polazo, and his wife. Some of the details were permitted to be proven by Polazo and wife. To this there was no objection. If an objection had been interposed, we might revise the action of the court in permitting the State to introduce as original testimony any of the details attending the rape; the rule being that, as original testimony, the prosecution can prove that the woman charged to have been outraged complained of the outrage. • This is admissible, W'hether res gestae or not, as a part of the State’s case. A very clear statement will be found in Thompson v. State, 38 Ind., 40, which states: “That the prosecution may show by the testimony of the prosecuting witness, or that of other witnesses, that she made complaint of the outrage recently after its commission, and when, where, and to whom it was made. That the prosecution will not be allowed to prove the name of the person charged with the crime, or the particulars as narrated by her, the practice being merely to ask whether she made the complaint that such an outrage had been perpetrated upon her, and to receive in answer only, simply, yes or no. That such statement is only corroborative of her testimony, and is not evidence of the fact upon which the jury can find the defendant guilty; and, when she is not a witness in the case, it is ■wholly inadmissible.” See Bish. Crim. Proc., § 912; Reg. v. Osborne, Car. & M., 622; Reg. v. Megson, 9 Car. & P., 420; Beg. v. Alexander, 2 Craw. & D., 126; People v. McGee, 1 Denio, 19; Stephen v. State, 11 Ga., 225; Johnson v. State, 17 Ohio, 593; Laughlin v. State, 18 Ohio, 99; Weldon v. State, 32 Ind., 81; Roscoe on Crim. Ev., 24. Mr. Greenleaf says: “Though a prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited on cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination the practice has been merely to ask her whether she made complaint that such an outrage had been perpetrated upon her, and to receive only, simply, yes or no. Indeed, the complaint constitutes no part of the res gestae. It is only a fact corroborative of the testimony of the complainant. Where she is
not a witness in the ease, it is wholly inadmissible.” See 3 Greenl. Ev. (15th Ed.), § 213. Mr. Taylor, in his work on Evidence, says, “That in no case- can the particulars of the complaint be disclosed by witnesses for the crown, either as original or confirmatory evidence, but the details of the statement can only be elicited by the prisoner’s counsel on cross-examination”—citing Reg. v. Walker, 2 Moody & R., 212; Reg. v. Osborne, Car.
&
M., 622; Reg. v. Quigley, Ir. Cir. R., 677. Mr. Phillips (volume 1, p. 149, Cow.
&
H. & E. Notes) says: “In prosecutions for rape or for assault with intent to commit rape, proof of the fact that the prosecutrix made complaint soon after the commission of the alleged crime is admissible, and indeed is generally required; but the particulars of the complaint made cannot be admitted in evidence as to the truth of her statement. The particulars stated, as to the violence used or the person who committed the violence, cannot be received. The evidence should be confined to the bare proof of the fact that the complaint of personal violence was made, and that an individual was charged, without mentioning his name”—citing Reg. v. Walker, 2 Moody & R., 212; Rex v. Wink, 6 Car.
&
P., 397; Reg. v. Megson, 9 Car.
&
P., 420; Reg. v. Osborne, 2 Car.
&
M., 622; Reg. v. Nicholas, 2 Car. & K., 248. This precise question came up in Pefferling v. State, 40 Texas, 487; and the Supreme Court of this State reversed the judgment upon the ground that the brother of the prosecutrix was permitted to swear to a detailed statement made by the prosecutrix (his sister). Judge Moore, speaking for court, says: “It is, we think, well established by reason, as well as the great weight of authority, that proof of the particulars of the complaint and the detailed statement of the alleged facts and circumstances connected with it, as was permitted in this case in the court below, cannot be admitted as original evidence to prove the truth of the statement testified to by the injured party, or to establish the charge made against the prisoner.” What was said by this court in Ruston’s case, 4 Tex. Crim. App., 432;. Fulcher’s case, 28 Tex. Crim. App., 471; Rippey’s case, 29 Tex. Crim. App., 38, and Bruce’s case, 31 Tex. Crim. Rep., 590, in so far as they antagonize the rule here laid down, is expressly overruled. We deem these citations amply sufficient to support the proposition that, as original testimony, nothing but the complaint and the parties to whom related, as stated in the Indiana case above, are admissible. We are not to be understood as holding that the State will not have the right to prove as original testimony that the prosecutrix complained of the outrage, to whom she made complaint, and that she, of course, charged some one with the crime; but we are to be understood as holding that the name of the party charged cannot be given, and that the circumstances of violence cannot be proven in this way. But, when a certain character of attack is made upon the testimony of the prosecutrix by the defense, the particulars of the offense may be proven by the State. If the defendant attempts to prove that she charged somebody else with the crime, or that she said that she did not know who was the guilty
party, the State would have the right to show that, soon after the transaction, she charged the defendant with being the person. If the defendant attempts to prove that her testimony has been recently fabricated, as to defendant being the man, the State would have the right to show that she had stated, soon after the transaction, that the defendant was the man.
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HURT, Presiding Judge.
Appellant was convicted of rape, and his punishment assessed at death, and he prosecutes this appeal. Upon the trial, over the objection of the appellant, the State ivas permitted to
ove the following facts, by T. C. Nunn, sheriff of Brazos County:
That on Monday, after the alleged rape of Fannie Polazo, and after defendant had been arrested for said offense, he placed defendant and eight other negroes in a line in the jail of Brazos County, and then brought Charley Polazo into said jail, and that he identified and pointed out defendant as the man who had committed the rape upon Fannie Polazo. The State was also permitted to prove by Sheriff Bunn, that at the same time and place, and under the same cireumstaneés, Fannie Polazo, the prosecutrix, was carried into the jail, and she identified and pointed out the defendant as the man who had raped her and bit her thumb; and that the said Fannie fainted, and would have fallen had she not been caught and held up by others. These facts were introduced in evidence as original testimony. Were they admissible as original testimony? On "the next morning after the rape, the prosecutrix related what had occurred to her brother-in-law, Joe Polazo, and his wife. Some of the details were permitted to be proven by Polazo and wife. To this there was no objection. If an objection had been interposed, we might revise the action of the court in permitting the State to introduce as original testimony any of the details attending the rape; the rule being that, as original testimony, the prosecution can prove that the woman charged to have been outraged complained of the outrage. • This is admissible, W'hether res gestae or not, as a part of the State’s case. A very clear statement will be found in Thompson v. State, 38 Ind., 40, which states: “That the prosecution may show by the testimony of the prosecuting witness, or that of other witnesses, that she made complaint of the outrage recently after its commission, and when, where, and to whom it was made. That the prosecution will not be allowed to prove the name of the person charged with the crime, or the particulars as narrated by her, the practice being merely to ask whether she made the complaint that such an outrage had been perpetrated upon her, and to receive in answer only, simply, yes or no. That such statement is only corroborative of her testimony, and is not evidence of the fact upon which the jury can find the defendant guilty; and, when she is not a witness in the case, it is ■wholly inadmissible.” See Bish. Crim. Proc., § 912; Reg. v. Osborne, Car. & M., 622; Reg. v. Megson, 9 Car. & P., 420; Beg. v. Alexander, 2 Craw. & D., 126; People v. McGee, 1 Denio, 19; Stephen v. State, 11 Ga., 225; Johnson v. State, 17 Ohio, 593; Laughlin v. State, 18 Ohio, 99; Weldon v. State, 32 Ind., 81; Roscoe on Crim. Ev., 24. Mr. Greenleaf says: “Though a prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited on cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination the practice has been merely to ask her whether she made complaint that such an outrage had been perpetrated upon her, and to receive only, simply, yes or no. Indeed, the complaint constitutes no part of the res gestae. It is only a fact corroborative of the testimony of the complainant. Where she is
not a witness in the ease, it is wholly inadmissible.” See 3 Greenl. Ev. (15th Ed.), § 213. Mr. Taylor, in his work on Evidence, says, “That in no case- can the particulars of the complaint be disclosed by witnesses for the crown, either as original or confirmatory evidence, but the details of the statement can only be elicited by the prisoner’s counsel on cross-examination”—citing Reg. v. Walker, 2 Moody & R., 212; Reg. v. Osborne, Car.
&
M., 622; Reg. v. Quigley, Ir. Cir. R., 677. Mr. Phillips (volume 1, p. 149, Cow.
&
H. & E. Notes) says: “In prosecutions for rape or for assault with intent to commit rape, proof of the fact that the prosecutrix made complaint soon after the commission of the alleged crime is admissible, and indeed is generally required; but the particulars of the complaint made cannot be admitted in evidence as to the truth of her statement. The particulars stated, as to the violence used or the person who committed the violence, cannot be received. The evidence should be confined to the bare proof of the fact that the complaint of personal violence was made, and that an individual was charged, without mentioning his name”—citing Reg. v. Walker, 2 Moody & R., 212; Rex v. Wink, 6 Car.
&
P., 397; Reg. v. Megson, 9 Car.
&
P., 420; Reg. v. Osborne, 2 Car.
&
M., 622; Reg. v. Nicholas, 2 Car. & K., 248. This precise question came up in Pefferling v. State, 40 Texas, 487; and the Supreme Court of this State reversed the judgment upon the ground that the brother of the prosecutrix was permitted to swear to a detailed statement made by the prosecutrix (his sister). Judge Moore, speaking for court, says: “It is, we think, well established by reason, as well as the great weight of authority, that proof of the particulars of the complaint and the detailed statement of the alleged facts and circumstances connected with it, as was permitted in this case in the court below, cannot be admitted as original evidence to prove the truth of the statement testified to by the injured party, or to establish the charge made against the prisoner.” What was said by this court in Ruston’s case, 4 Tex. Crim. App., 432;. Fulcher’s case, 28 Tex. Crim. App., 471; Rippey’s case, 29 Tex. Crim. App., 38, and Bruce’s case, 31 Tex. Crim. Rep., 590, in so far as they antagonize the rule here laid down, is expressly overruled. We deem these citations amply sufficient to support the proposition that, as original testimony, nothing but the complaint and the parties to whom related, as stated in the Indiana case above, are admissible. We are not to be understood as holding that the State will not have the right to prove as original testimony that the prosecutrix complained of the outrage, to whom she made complaint, and that she, of course, charged some one with the crime; but we are to be understood as holding that the name of the party charged cannot be given, and that the circumstances of violence cannot be proven in this way. But, when a certain character of attack is made upon the testimony of the prosecutrix by the defense, the particulars of the offense may be proven by the State. If the defendant attempts to prove that she charged somebody else with the crime, or that she said that she did not know who was the guilty
party, the State would have the right to show that, soon after the transaction, she charged the defendant with being the person. If the defendant attempts to prove that her testimony has been recently fabricated, as to defendant being the man, the State would have the right to show that she had stated, soon after the transaction, that the defendant was the man. If the defendant attempts to show that improper influences have been brought to bear upon the prosecutrix, or any other witness, to accuse the defendant of the crime, the State would have the right to prove that, before these influences were applied, she told the same tale as she swears to now upon the trial. Except as to the right to prove her complaint, the prosecutrix in a rape case stands precisely on the same ground, and no better, than a witness in any other case. See Bailey v. State, 9 Tex. Crim. App., 98; Williams v. State, 24 Tex. Crim. App., 637; Dicker v. State (Tex. Crim. App.), 32 S. W. Rep., 541. Now, as we have above stated, the prosecutrix complained of the outrage to her brother-in-law on the next morning after the alleged rape. Some of the details were proven, but there was no objection. This was more than the State had a right to, until she was attacked. If appellant had objected to the introduction of the details in this matter, reserving his bill, then we would have held that there was error in admitting them. The conduct of the sheriff, the fact that the p2-osecutrix and the boy, in the jail, identified the defe2idant as the man who committed the crime, were not a statement or complaint of the prosecuti-ix soon after the transaction, which had already been made; and, if it had been the first time that she had recognized the defendant, it would have been clearly inadmissible. All that could íiave been proven was that she complained of the outrage. These remarks apply to the prosecutrix. We are not aware of any authority that will admit in evidence the fact that the boy recognized the defe2idant. Certainly, no law permits his complaints to be admitted in evidence. Of course, if bis testimony had been attacked hi the manner above indicated, the State could prove that he recognized the defendant soon after the t2-ansaction. We are not aware of any authority to admit in evidence such conduct as is described in this bill of exception. _ The circumstances under which the identification was made, the fact that the pi-osecut2-ix fainted—if thei’e be any authority for such testimony, we have found it in no book, except in the Bruce case, supra. The defendant upon the trial below made no attack such as above described upon either of the witnesses. There was no effort to show that she had charged somebody else with the crime. There was no offer to show that her testimony was recently fabricated, and none to show that she testified under the influence of improper motives. And, unless this was shown, this testimony could not have been introduced for the purpose of supporting the witnesses. The great weight of authority holds that the admission of the statement of the prosecutrix, made soon after the outrage, is only for the purpose of corroborating or sustaining her testimony. We are of opinion that there was error in this matter of a very material character. A number of witnesses swore to facts which,
if true, tended very cogently to show that the defendant was not present at the time the rape was charged to have been committed. The only issue in this case was as to the identity of the party who committed the offense. Hence the reception of this testimony was calculated very powerfully to induce the jury to believe that, because the prosecutrix fainted on recognizing the defendant one or two days afterwards, therefore he must have been the man. For the error above discussed, the judgment is reversed, and the cause remanded.
Reversed and Remanded.