The opinion
MARTIN, Judge.
— Offense, assault to rape; penalty, five years in the penitentiary.
Appellant at the time of the alleged commission of the offense was a deputy United States marshal residing in the town of Wichita Falls and had an office in the. basement of the court house. He was at this time sixty-two years old. The prosecutrix was a child about seven years old, who testified in substance that appellant took her to his office in the daytime and there assaulted her. Her stepmother, Mrs. Williams, and others testified to a recent complaint made by prosecutrix. The appellant introduced the sister, grandmother and other blood relatives of prosecutrix, who testified to the bad reputation of her stepmother for truth and veracity and to other facts tending to support the appellant’s theory that her stepmother was the instigator of the charge against appellant. The county health officer, a physician, was introduced by appellant as a witness, who testified he made an examination of the private parts of the little child alleged to have been assaulted a short time after the alleged assault and found no bruises, lacerations or indications of an assault. Appellant denied in toto the transaction, claiming that Mr. White, at whose house the stepmother and the little child boarded, was an applicant for his position. Other testimony was introduced showing the surroundings at the place of the alleged assault which tended
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to prove it not reasonably probable that a man would assault a child at such place.
The evidence is such as to make appellant’s guilt gravely doubtful. Considering this record as a whole, we regard the evidence as meagerly sufficient, if at all, to support the conviction. In view of this state of the record we think the following shows error, .which may have turned the scales against appellant: The father of the little child was permitted to testify in part over objection that appellant came to where he was some week or so after the alleged rape and spoke to him, to which he answered: “I am an invalid and seems like the world knows it, they have taken advantage of me.” The district attorney over objection was permitted to state to the jury that the child’s father was “a man with a broken hand and paralyzed and wholly unable to defend himself or the honor of his family.” The testimony was clearly inadmissible and tended to prove no issue in the case and its effect plainly was to create prejudice against appellant, particularly so in connection with the comments of the prosecuting attorney, recited above. For this error, the judgment is reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Hawkins, J., absent.