ON PETITION FOR REHEARING
ROY NOBLE LEE, JUSTICE, DISSENTING:
I think the lower court erred in permitting testimony as to the prosecutrix's reputation in the community for truth and veracity, and, therefore, I dissent from the majority opinion which holds that the lower court did not err in admitting such testimony.
Appellant Larry Pickett and Ray Charles Jackson were separately indicted for the forcible rape of Ruby Marie Hood, a 19-year-old female. Appellant's trial was held beginning April 3, 1981, which resulted in his conviction. Jackson's trial was held April 9, 1981, and he was convicted likewise. Pickett did not testify at his trial, but Jackson was called as a witness and voluntarily testified in Pickett's behalf.
The prosecutrix contended that she was forcibly abducted and raped by Pickett and Jackson, while Jackson's testimony was to the effect that she voluntarily accompanied them from the Bird Cage Lounge to the Camellian Motel where she voluntarily entered into sexual acts with them and was paid for her services. There is a sharp conflict in the testimony of the prosecutrix and Jackson upon which testimony the respective sides depended for their cases.
The following facts are uncontradicted in the record: *fn1
1. Pickett, Jackson and the prosecutrix got into an automobile outside the Bird Cage Lounge in a public place.
2. They went to the Camellian Motel, a public place, left the vehicle, and entered a room in the motel.
3. The prosecutrix disrobed.
4. Pickett, Jackson and at least one other person engaged in sexual acts with the prosecutrix during the evening.
When Jackson testified, he denied that force, threats, or violence were used against the prosecutrix. He stated that she voluntarily entered into the sex acts with him, Pickett and another individual. On cross-examination of Jackson, the prosecuting attorney asked questions and received responses as follows:
Q. And Ruby Marie Hood, you know, has made charges against Larry Pickett for rape ?
A. She made some of them against me as well.
Q. You and Larry Pickett for rape?
Q. And you're telling this Jury, and it's as true as everything else you've said, that she's lying?
A. Damn right she's lying.
Q. Damn right she's lying?
It is obvious that the prosecuting attorney had set a trap for the witness. If Jackson had denied the prosecuting witness was lying, he would have been admitting that Pickett and he forcibly raped her. In all of his testimony previous to that question, he had denied that they raped her and he simply answered the prosecuting attorney's question in the affirmative and emphatically so.
The dissenting opinion characterizes the testimony of Jackson as an affirmative charge that the prosecuting witness was lying and that it constituted a direct attack on the character of the prosecutrix. If such were true, every denial by a witness ...