The opinion
MOTION FOR REHEARING.
BROOKS, Judge.
This case is now before us on rehearing. Appellant insists that we were in error in holding the eighth bill of exceptions defective as set out in the original opinion. In this he is correct, as the bill contains this statement: “To the action of the court overruling said objections and admitting said evidence defendant” excepted. Eow, the question arises, was the testimony admitted of a character likely to injure appellant? We say not. It was germane and proper to prove that ap
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pellant had promised to marry prosecutrix; it was proper to prove that appellant assured prosecutrix he was not a married man. These are facts that could be legitimately used by the jury in measuring the amount of punishment to be inflicted upon appellant. This case can be distinguished from Smith v. State, 5 Texas Ct. Rep., 372. In Smith’s case, there was no question but that prosecutrix knew Smith was a married man, and hence the fact of his marriage could only be used to prejudice him, and could not and would not throw any light upon the motive, animus or additional mendacity of the act. If the fact that defendant was not a married man, and he so represented to prosecutrix, this would be part, as it were, of the res gestae of the transaction, showing the purpose and intent of appellant, and giving a reason on the part of prosecutrix for consenting to the lascivious embrace of the appellant. However, in view of the fact that this testimony is admissible, we deem it necessary to review bill of exceptions number 6, as stated in the original opinion. In that, appellant insists that the court erred in refusing to permit him to prove that prosecutrix had been notified that defendant was a married man. In the original opinion we held this was not admissible. In this we were in error. If it was permissible on the part of the State to prove that prosecutrix was engaged to marry appellant, and to prove that she did not know he was married, clearly it was germane to that issue for appellant to prove that she did know he was married. • The fact of the engagement of appellant to prosecutrix could be used to intensify and increase the punishment. Certainly it was legitimate for appellant to disprove that portion of the testimony which goes to intensify the punishment. Hence it follows that the court erred in refusing to permit appellant to prove that prosecutrix had been notified that defendant was a married man. In this particular the original opinion was wrong. The motion for rehearing is accordingly granted, and the judgment is reversed and the cause remanded.
Motion granted and judgment reversed and cause remanded.