¶1At the time the evidence, which in the court's qualification of the bill of exception is described as "disgusting familiarity," was admitted, the proof was abundant that the girl was under fifteen years of age; that she was not the wife of appellant, and that he had had sexual intercourse with her. There was no denial of these facts, and certainly no rebutting evidence of facts detailed in the evidence of the State or the cross-examination or suggested therein which raised a doubt or controversy as to the fact of the intercourse.
¶2It was held in Battles' case, 63 Tex.Crim. Rep., that in cases of this character acts of familiarity are admissible not only prior but subsequent to the commission of the offense. The reason for receiving them, as there given, as we understand the decision, is that they bear upon the probability that the act involved in the transaction was in fact done. In the Battles case and the cases therein discussed there was a denial of the fact of intercourse. It was a controverted issue. At the time of the decision of the Battles case it had not been previously decided that such testimony was receivable under an indictment for rape, but by analogy with cases of incest and adultery in which such testimony had been held admissible, the doctrine was extended to cases of statutory rape, with the qualification, however, that it was to be received only as tending to solve a controverted issue.
¶3In this case it was not admitted upon a controverted issue. The only issue upon which it could have borne was that of sexual intercourse, which was abundantly proved and not controverted. It could have been used by the jury for no purpose other than to inflame their minds against appellant. Viewed in the light of the verdict it is probable that it did so.