Burke, Oh. J.
The defendant, Matt A. Noel, was convicted, in the district court of Emmons county, of the crime of rape in the second degree.
The motion for a new trial was overruled, and the defendant appeals from the judgment of conviction and from the order denying the motion for a new trial.
Appellant specifies as error—
“That the verdict is clearly against the evidence in that:
“(1) That the evidence is insufficient as a matter of law to establish the guilt of the defendant, beyond a reasonable doubt, of the crime of rape in the second degree as charged in the information; that there is no sufficient evidence to corroborate the prosecutrix to prove the commission of an act of rape.
“(2) That the only evidence offered and received as to defendant’s age at the time of the commission of the crime of rape in the second degree as charged in the information shows that he was 25 years of age on the 1st day of January, 1935.”
There is no merit in the contention that the verdict is against the evidence. The specific acts are testified to by the prosecutrix and the witness Hazel Ilofl: testified to circumstances and to acts which clearly connect the defendant with the commission of the crime.
The theory of appellant is that the prosecutrix, Julia Horner, is an accomplice and that, therefore, her testimony must be corroborated. If she was an accomplice, her testimony is corroborated by the testimony of the witness Hazel Hoff; but the prosecuting witness, Julia Horner, was not an accomplice. “The victim of the rape is never an accomplice, the rule in this respect being the same whether the crime was committed by force, or against the will of the female, or by fraud, or consisted in carnal knowledge of a female under the age of consent, although she actually consented thereto.” 16 C. J. p. 683, § 1392; Price v. State, 56 Tex. Crim. Rep. 82, 119 S. W. 99; State v. Hender
son, 84 Iowa, 161,
50
N. W. 758; Melton v. State, 71 Tex. Crim. Rep. 130, 158 S. W. 550; Bond v. State, 63 Ark. 504, 30 S. W. 554, 58 Am. St. Rep. 129; People v. Bernon, 29 Cal. App. 424, 155 P. 1021; Yeager v. United States, 16 App. D. C. 356; McCreary v. Com. 163 Ky. 206, 173 S. W. 351; Com. v. Feist, 50 Pa. Super. Ct. 152; Price v. State, 64 Tex. Crim Rep. 448, 142 S. W. 586; Battles v. State, 63 Tex. Crim. Rep. 147, 140 S. W. 783; Smith v. State (Tex. Crim. Rep.) 73 S. W. 401; Smith v. State, 51 Tex. Crim. Rep. 137, 100 S. W. 924; Miller v. State (Tex. Crim. Rep.) 72 S. W. 996; Hamilton v. State, 36 Tex. Crim. Rep. 372, 37 S. W. 431; State v. Hilberg, 22 Utah, 27, 61 P. 215. “The usual test by which to determine whether or not one is an accomplice of a defendant on trial is whether or not he could be indicted and punished for the crime with which defendant is charged.” 16 C. J. p. 671, § 1344. This statement in the text is supported by an unbroken line of authorities cited in the notes and is unquestionably the law.
Prosecuting witness, as a matter of course, could not be prosecuted for the crime of rape, and, therefore, is not an accomplice. The case cited and relied upon by appellant is an incest case, where, as a matter of course, both parties could be prosecuted and each was the accomplice of the other.
The defendant was charged, in the information, with rape in the second degree. It was alleged that he was over the age of twenty years, to-wit, twenty-three years, and under the statute a defendant over twenty years of age and under twenty-four can be charged only with rape in the second degree when the female is under eighteen years of age. It developed at the trial that the defendant was twenty-five years of age, and it is the contention of the appellant that there is a fatal variance between the allegations and the proof, the allegations charging the defendant with rape in the second degree and the proof showing him to be guilty of rape in the first degree. The specific objection by the appellant is “I want to object to that proof, the defendant’s age constitutes a fatal variance between the crime charged in the complaint and information and the crime it would constitute under the statute.”
The court was properly constituted, it had jurisdiction of the offense charged, of the defendant, and by the empaneling of the jury and pro
ceedings in the prosecution, the defendant was placed in jeopardy. “Where, on the trial, the court, without the consent of accused, discharges the jury because it is of the opinion that the evidence shows him guilty of a higher crime, for which crime he is subsequently indicted, he is twice in jeopardy and should be acquitted.” 16 C. J. p. 253, § 407; People v. Ny Sam Chung, 94 Cal. 304, 29 P. 642, 28 Am. St. Rep. 129; Ingram v. State, 124 Ga. 448, 52 S. E. 759; Holt v. State, 38 Ga. 187.
Eeason for rule. “If the State thinks proper, by its prosecuting officer, to indict a party for an assault with intent to murder, upon
a
given state of facts, and upon the trial thereof, the defendant is acquitted, can the State then prefer another indictment, alleging precisely the same state of facts, (with the exception of the malicious intent,) and put the party again upon his trial for the same criminal acts, by altering the name of the offence? The State having-made its election as to the nature and character of the offence for which it will prosecute the party upon a given state of facts, if, upon the trial, the defendant is acquitted, ought not the State to be bound by its election, and not be permitted again to indict and prosecute the defendant for the same criminal acts, under the name of another offence? The question to be answered is, has the defendant been arraigned and put upon his trial upon a sufficient legal accusation, for the same criminal acts with which he is charged the second time ? If he has, then he has been put in jeopardy, within the true intent and meaning of the constitution, and cannot be tried the second time for the same criminal acts, under the same, or a different named offence.” Holt v. State, 38 Ga. 187. Thus this rule applies to a person indicted for manslaughter, where the court discharges the jury and such person is subsequently indicted for murder. People v. Hunckeler, 48 Cal. 331.
In the instant case the state elected to try the defendant for rape in the second degree and it is bound by its election. The defendant was put in jeopardy and if he had been acquitted he could not be tried again, if the conviction is sustained he cannot be tried again.
Albert Heer was called as a witness for the state. He testified he was not in the party with the defendant, the prosecuting witness, and Hazel Hoff either at the dance, the Green Lantern Cafe, where other witnesses testified they had lunch, nor at the cemetery, where, according
to the testimony of the prosecuting witness, the offense was committed. .The prosecuting witness and Iiazel Hoff had testified that the witness Heer was with them at the dance, at the Green Lantern Cafe, and at the cemetery, where they said the offense was committed. After denial on the part of Heer, the state’s attorney then cross-examined him as to the statements made in his presence and in the presence of others.
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Burke, Oh. J.
The defendant, Matt A. Noel, was convicted, in the district court of Emmons county, of the crime of rape in the second degree.
The motion for a new trial was overruled, and the defendant appeals from the judgment of conviction and from the order denying the motion for a new trial.
Appellant specifies as error—
“That the verdict is clearly against the evidence in that:
“(1) That the evidence is insufficient as a matter of law to establish the guilt of the defendant, beyond a reasonable doubt, of the crime of rape in the second degree as charged in the information; that there is no sufficient evidence to corroborate the prosecutrix to prove the commission of an act of rape.
“(2) That the only evidence offered and received as to defendant’s age at the time of the commission of the crime of rape in the second degree as charged in the information shows that he was 25 years of age on the 1st day of January, 1935.”
There is no merit in the contention that the verdict is against the evidence. The specific acts are testified to by the prosecutrix and the witness Hazel Ilofl: testified to circumstances and to acts which clearly connect the defendant with the commission of the crime.
The theory of appellant is that the prosecutrix, Julia Horner, is an accomplice and that, therefore, her testimony must be corroborated. If she was an accomplice, her testimony is corroborated by the testimony of the witness Hazel Hoff; but the prosecuting witness, Julia Horner, was not an accomplice. “The victim of the rape is never an accomplice, the rule in this respect being the same whether the crime was committed by force, or against the will of the female, or by fraud, or consisted in carnal knowledge of a female under the age of consent, although she actually consented thereto.” 16 C. J. p. 683, § 1392; Price v. State, 56 Tex. Crim. Rep. 82, 119 S. W. 99; State v. Hender
son, 84 Iowa, 161,
50
N. W. 758; Melton v. State, 71 Tex. Crim. Rep. 130, 158 S. W. 550; Bond v. State, 63 Ark. 504, 30 S. W. 554, 58 Am. St. Rep. 129; People v. Bernon, 29 Cal. App. 424, 155 P. 1021; Yeager v. United States, 16 App. D. C. 356; McCreary v. Com. 163 Ky. 206, 173 S. W. 351; Com. v. Feist, 50 Pa. Super. Ct. 152; Price v. State, 64 Tex. Crim Rep. 448, 142 S. W. 586; Battles v. State, 63 Tex. Crim. Rep. 147, 140 S. W. 783; Smith v. State (Tex. Crim. Rep.) 73 S. W. 401; Smith v. State, 51 Tex. Crim. Rep. 137, 100 S. W. 924; Miller v. State (Tex. Crim. Rep.) 72 S. W. 996; Hamilton v. State, 36 Tex. Crim. Rep. 372, 37 S. W. 431; State v. Hilberg, 22 Utah, 27, 61 P. 215. “The usual test by which to determine whether or not one is an accomplice of a defendant on trial is whether or not he could be indicted and punished for the crime with which defendant is charged.” 16 C. J. p. 671, § 1344. This statement in the text is supported by an unbroken line of authorities cited in the notes and is unquestionably the law.
Prosecuting witness, as a matter of course, could not be prosecuted for the crime of rape, and, therefore, is not an accomplice. The case cited and relied upon by appellant is an incest case, where, as a matter of course, both parties could be prosecuted and each was the accomplice of the other.
The defendant was charged, in the information, with rape in the second degree. It was alleged that he was over the age of twenty years, to-wit, twenty-three years, and under the statute a defendant over twenty years of age and under twenty-four can be charged only with rape in the second degree when the female is under eighteen years of age. It developed at the trial that the defendant was twenty-five years of age, and it is the contention of the appellant that there is a fatal variance between the allegations and the proof, the allegations charging the defendant with rape in the second degree and the proof showing him to be guilty of rape in the first degree. The specific objection by the appellant is “I want to object to that proof, the defendant’s age constitutes a fatal variance between the crime charged in the complaint and information and the crime it would constitute under the statute.”
The court was properly constituted, it had jurisdiction of the offense charged, of the defendant, and by the empaneling of the jury and pro
ceedings in the prosecution, the defendant was placed in jeopardy. “Where, on the trial, the court, without the consent of accused, discharges the jury because it is of the opinion that the evidence shows him guilty of a higher crime, for which crime he is subsequently indicted, he is twice in jeopardy and should be acquitted.” 16 C. J. p. 253, § 407; People v. Ny Sam Chung, 94 Cal. 304, 29 P. 642, 28 Am. St. Rep. 129; Ingram v. State, 124 Ga. 448, 52 S. E. 759; Holt v. State, 38 Ga. 187.
Eeason for rule. “If the State thinks proper, by its prosecuting officer, to indict a party for an assault with intent to murder, upon
a
given state of facts, and upon the trial thereof, the defendant is acquitted, can the State then prefer another indictment, alleging precisely the same state of facts, (with the exception of the malicious intent,) and put the party again upon his trial for the same criminal acts, by altering the name of the offence? The State having-made its election as to the nature and character of the offence for which it will prosecute the party upon a given state of facts, if, upon the trial, the defendant is acquitted, ought not the State to be bound by its election, and not be permitted again to indict and prosecute the defendant for the same criminal acts, under the name of another offence? The question to be answered is, has the defendant been arraigned and put upon his trial upon a sufficient legal accusation, for the same criminal acts with which he is charged the second time ? If he has, then he has been put in jeopardy, within the true intent and meaning of the constitution, and cannot be tried the second time for the same criminal acts, under the same, or a different named offence.” Holt v. State, 38 Ga. 187. Thus this rule applies to a person indicted for manslaughter, where the court discharges the jury and such person is subsequently indicted for murder. People v. Hunckeler, 48 Cal. 331.
In the instant case the state elected to try the defendant for rape in the second degree and it is bound by its election. The defendant was put in jeopardy and if he had been acquitted he could not be tried again, if the conviction is sustained he cannot be tried again.
Albert Heer was called as a witness for the state. He testified he was not in the party with the defendant, the prosecuting witness, and Hazel Hoff either at the dance, the Green Lantern Cafe, where other witnesses testified they had lunch, nor at the cemetery, where, according
to the testimony of the prosecuting witness, the offense was committed. .The prosecuting witness and Iiazel Hoff had testified that the witness Heer was with them at the dance, at the Green Lantern Cafe, and at the cemetery, where they said the offense was committed. After denial on the part of Heer, the state’s attorney then cross-examined him as to the statements made in his presence and in the presence of others. The State’s attorney then asked the witness this question:
“Q. Now, I will ask you did you not state to me that Matt Noel told you after you came back from the cemetery that he had had intercourse with Julia Horner?
“A.
No.”'
Louis Langeliers, a witness, is called for the state and is asked this question:
“Q. Did you hear the witness, Albert Heer, deny having made the following statement . . . that Albert Heer told me that Matt Noel told him that he had had intercourse with Julia Horner on the night in question?
“By Mr. Kelsch: That is objected to as prejudicial and not binding on him, and not made in the presence of the defendant.
“By the Court: It will be admitted merely for the purpose of impeachment of the witness, Albert Heer.
“A.' He did.”
What was the purpose of impeaching this witness ? His testimony was purely negative and so far as his testimony was concerned the record was the same as though he hadn’t been called at all, and while the court did say it was only for the purpose of impeachment, they did manage to get this statement, which he is claimed to have made to the State’s attorney in the presence of the sheriff, in evidence. It was hearsay evidence and was extremely prejudicial, for which there must be a new trial.
A case very much in point is the case of Andrews v. State, 64 Tex. Crim. Rep. 2, 141 S. W. 220, 42 L.R.A.(N.S.) 747. In that case the court said: “The district attorney in asking the questions in the form he does, states that the witness had so informed him, and states, when objected to: T am not offering it as original testimony — I am laying a predicate for impeachment. He tells me a tale now, and told me a different tale in the room a while ago” thus informing the jury
that the witness had so told him. The witness had not testified to any fact that could or would surprise the district attorney, but had merely failed to testify to what he apparently expected him to testify,' and, being his own witness, was it permissible to permit him to lay a predicate to impeach him, and thus get before the jury evidence otherwise inadmissible? In Bailey v. State, 37 Tex. Crim. Rep. 579, 40 S. W. 281, it is held: ‘A party can only impeach his own witness when such witness has testified to some damaging fact, and mere failure to testify does not give the right to impeach him.’ In Williford v. State, 36 Tex. Crim. Rep. 414, 37 S. W. 761, it is held: ‘Where the state asked her own witness if the defendant did not make a certain declaration to the witness, which the witness denied or stated he did not remember, the answer of the witness is conclusive, and it is not competent for the state to show by other witnesses that the witness had so stated to others.’ And in Thomas v. State, 14 Tex. App. 70, it is said: ‘A party can impeach his own witness only when he has testified to facts injurious to his cause. A mere negative answer, when the party expected an affirmative answer, will not give the right to contradict the witness.’ See also Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875; Erwin v. State, 32 Tex. Crim. Rep. 519, 24 S. W. 904; Kirk v. State, 35 Tex. Crim. Rep. 224, 32 S. W. 1045; Shackelford v. State (Tex. Crim. Rep.) 27 S. W. 8; Gibson v. State (Tex. Crim. Rep.) 29 S. W. 471, and Finley v. State (Tex. Crim. Rep.) 47 S. W. 1015.” Continuing the court said: “. . . ‘But it is said that the error of the court in admitting this testimony is cured by the subsequent exclusion thereof and withdrawal by the court of said testimony from the consideration of the jury. This question has heen before the courts of this state in a number of cases. ... We think the true rule on this subject to be: If the testimony is not of a material character, it may be withdrawn by the court, and the error thus cured; but if, on the -contrary, the evidence was of a material character, and was calculated to influence or affect the jury, the withdrawal of the same from their consideration would not heal the vice of its admission.’ This is the rule of this court, especially in those cases where the testimony showing guilt is weak, as in this case.”
Eollowing the Texas case Andrews v. State, supra, there are voluminous notes supporting and stating the rule. It is well settled that
a party cannot impeach a witness whom he has voluntarily called, or made his own, unless the witness has given affirmative testimony injurious to the party’s case and has not merely failed to testify to facts which the party sought to prove by him.
The instant case comes squarely within the rule. See, also, Re Campbell, 100 Vt. 395, 138 A. 725, 54 A.L.R. 1369; State v. Youman, ante, 204, 263 N. W. 477.
The judgment is reversed and a new trial ordered.
Nuessle, Morris and Christianson, JJ., concur.