author: DAVIDSON, J. PRENDERGAST, P. J.

text:
    MASON v. STATE.
    (No. 3969.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    1. Criminal Law <§=>448(11) — Homicide <§=> l90(l) — Threats—Demeanor—Evidence.
    On a murder trial, where the defense was self-defense, a witness testified that deceased told her he was mad at accused, wanted to ldll him, and was going to get rid of him. She was then asked whether deceased was mad at the time he made such remarks, and answered that he was. Held that such evidence was not incompetent as a mere opinion, but was admissi-

      Me since the statement made by deceased was a threat, and his demeanor at the time of making it, showing whether the threat was jocular or serious, was important as bearing on the issue of who started the difficulty which resulted in the homicide!
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036, 1041: Dec. Dig. @=> 448(11); Homicide, Cent. Dig. § 399; Dec. Dig. @=>190(1).]
    2. Cbiminal Law @=>448 — 'Threatening Con-duci^Impbession Made on Witness.
    Where the defense was self-defense, and there was an issue as to who started the difficulty resulting in the homicide upon accused, approaching deceased for the alleged purpose of adjusting their difficulty, it was proper to allow a witness who saw the affray to testify that when deceased reached down and picked up a rock and drew back his hand to throw, such conduct made the impression on the witness’ mind that deceased was going to immediately attack accused and strike him with the _ rock, such impression being an original impression of the witness from a view of the occurrence and a part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. @=>448.]
    3. Homicide @=300(5) — Provoking Assault —Defective Ghaege.
    Where the defense was self-defense, under an alleged attack by deceased when approached by accused for the purpose of settling a difficulty, a charge on the intent and conduct of accused in approaching deceased, which told the jury that if accused’s acts, or words, or both taken together, were reasonably “calculated” to provoke, and did provoke, deceased to make an attack on defendant, defendant could not justify the homicide on the ground of self-defense, was defective, since defendant must do something or utter words which actually provoke the difficulty ; it not being sufficient that such. acts or words were calculated to provoke.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 619; Dee. Dig. @=>300(5).]
    4. Homicide @=>300(12) — Chabge—Bukden— Reasonable Doubt.
    In a prosecution for homicide, the defense was self-defense against an attack upon accused by deceased when approached by defendant for the purpose of adjusting a difficulty. The court charged that if: (1) The defendant did not go to deceased with the intent of provoking a difficulty; or if (2) he did so, he did not, upon reaching deceased, use words or do acts with the intent of provoking a difficulty with the apparent intent of killing deceased if he resisted; or (3) if defendant did start out with the intent of seeking deceased, and used words or committed acts calculated to provoke an assault by deceased, but did not use such words or commit such acts with the intent of provoking an attack by deceased for the purpose of killing him; and, if the jury believed either one or all of such propositions, they should find for defendant on the issue of provoking a difficulty. Meld, that such charge was defective in apparently throwing the burden of proof on defendant by requiring the jury to affirmatively find that defendant did not approach deceased with the intent of provoking the difficulty; whereas a reasonable doubt as to defendant’s purpose in approaching deceased entitled him to acquittal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 627, 630; Dec. Dig. @=>300(12).]
    5. Homicide @=>307(2) — Ciiaege—Failube to State Offense.
    Such charge was further defective in failing to inform the jury of wliat appellant would be guilty, or what should be the verdict in case the jury found for him on the issue of provoking a difficulty; manslaughter and murder being both charged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 639; Dec. Dig. @=>307(2).]
    6. Homicide @=>300(14) — Chabge — Right to Akms — Self-Defense.
    It being in evidence that accused was armed when he approached deceased, and there being an issue whether he had armed himself expressly for the purpose of approaching deceased to provoke a difficulty, such charge was further defective in failing to tell the jury that deceased had the right to self-defense upon an assault by accused when accosting him for the purpose of settling the difficulty, though the court correctly charged that defendant had the right to arm himself before seeking deceased if he believed himself to be in danger of death or injury from him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 629; Dec. Dig. @=>300(14).]
    7. Homicide @=>188(5) — Deceased’s Chabac-teb — Evidénce.
    It was error to exclude testimony that witness considered deceased a fighting dangerous man and a man of high temper, since defendant was not restricted to his statutory right to prove deceased’s general reputation, but might prove that deceased was dangerous by any testimony which showed that fact, the question being not so much one of reputation as of fact which can be proved, either by reputation or by knowledge of the facts independent of reputation.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 395; Dee. Dig. @=>188(5).]
    8. Homicide @=>188(5) — Deceased’s Reputation — Evidence—Competency.
    Where a witness was asked if she knew whether deceased was a fighting man and a man of high temper, to which she answered, “Yes, we considered him so,” such testimony was competent as evidence of deceased’s reputation under the statute, where all the people in the vicinity seemed to have known all the parties, and knew the standing and reputation of both accused and deceased and the circumstances and incidents that occurred culminating in the homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 395; Dec. Dig. @=>188(5).]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    Will Mason was convicted of murder, and appeals.
    Reversed.
    J. B. Haynes, of Cleburne, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder. The jury assessed his punishment at six years’ confinement in the penitentiary.

The record, so far as the statement of facts is concerned, is not materially different from what it was on the former appeal as reported in 72 Tex. Cr. R. 501, 163 S. W. 66.

By bill of exceptions No. 14 it is shown that while Mrs. Crook was testifying in behalf of the defendant, and after she had testified, in substance, that Oscar Shelton, the deceased, came to her house one morning about three weeks before the killing, and said to her, in substance:

“Mrs. Crook, I am mad, I am mad at Bill Mason. I get so mad I want to kill him; and that’s not all; I am going to run Mm out of the neighborhood. I am going to get rid of him. I can’t get along with him and never could”

—defendant’s counsel at this time asked the witness the following question:

“At the time Oscar Shelton, deceased, was talking to you, and said that he was mad at Bill Mason, I will ask you whether or not he was mad, if you know?”

She would have answered:

“Tes; Oscar Shelton at the time was very mad.”

This is claimed to be admissible and material testimony for the defendant, and the knowledge that the witness had as to whether or not the deceased was or was not mad was such knowledge that the witness could give by answering yes or no, and that it was not an opinion of the witness, but was such a fact as could be shown. The state objected because it was the opinion of the witness, and the court sustained the objection, excluding the testimony. The court qualifies this bill as follows: “Defendant was never told of this conversation.” It would be immaterial whether defendant was told about the matter or not. It was a threat, and, if uncommunieated, it would tend to solve the question as to who began the difficulty, and this was a mooted question on the trial. Under the defendant’s theory the deceased began the second difficulty, and all the testimony shows that he began the first difficulty, which occurred 15 or 20 minutes prior to the second difficulty which ended in the homicide. This testimony was clearly admissible. It is true, the deceased said to Mrs. Crook that he was mad and very mad, and made threats. We hardly think that this was sufficient ground, and the court does not put it upon that ground, nor did the state put it upon that ground. The state claimed it was an opinion, and the court says defendant was never told of it. The condition of the mind of the deceased at the time he made the threats was of grave import. If it was jocular, not serious, it would amount to a great deal less on its weight than if he was serious, determined, and mad and outraged with the defendant at the time he made the threats. This character of testimony has always been held admissible. It is not an opinion; it is the statement more of a fact than a conclusion. It is a sort of shorthand rendering of the fact. The facial expression, tone of the voice, and many other things of that sort in connection With statement and manner of the deceased at the time he made the statement would not be well conveyed to the minds of the jury by the witness. The fact that a man might be angry or in a good humor; that he is jocular and laughing, or serious in his statement— are matters that cannot well be conveyed to the minds of the jury. This is exemplified in many of the decisions, and in many ways.

We hardly deem it necessary at this late date to cite authorities in support of this proposition. One of the late cases is to he found reported in Duke v. State, 61 Tex. Cr. R. 441, 134 S. W. 705. This was important, it seems, under the facts of this case. The evidence shows that deceased had, on different occasions, threatened to kill or run appellant out of the country, and up to within a very short time of the day of the homicide these threats had been made. On the morning of the trouble the parties were picking cotton, the deceased coming in later than appellant, and the facts show he picked rapidly and caught up with appellant, who was picking cotton ahead of him, and as soon as he caught up with him he took off his cotton sack and went to where appellant was and raised trouble with him; that he had a rock in his hand, and grabbed appellant by his shirt collar and tore his shirt. Appellant also caught deceased by the collar. He also had a rock in his hand. They were separated by one of the witnesses, who testified, and in fact this seems not to have been a controverted fact. Appellant went away, he said, to have deceased arrested, and, after going to the house where he was living, changed his mind, and said he would go back and talk the matter over and see if they could not adjust the trouble. He seemed to be afraid of the deceased. The state, however, met this by showing by a witness that appellant, when he started away, said he would come back and have it out with the deceased. There is also a controversy as to why appellant went to the house. The state’s contention is, which they introduced evidence to sustain, that he went to the house after his pistol. Appellant’s testimony along this line was that he had his pistol with him in his coat, which was on a cultivator; that he put on his coat and went to the house. There is also evidence pro and con as to what occurred when appellant returned. I-Iis side of it would make the deceased again the aggressor. The state’s theory of it was that appellant came back and renewed the difficulty. Under all these circumstances we think this testimony was clearly admissible.

While Albert Mason was testifying for the defendant he stated, among other things, that he was in the field picking cotton where the shooting of deceased by appellant occurred; that after the first difficulty in the field between defendant and deceased, defendant went off and afterwards returned and walked up pretty close to deceased and said something; that deceased pulled off his sack and stooped down like he was picking up something, and after he got up he had a rock in his hand, which he drew back, and appellant shot. At this juncture defendant’s counsel asked the witness the following question:

“At the time Oscar Shelton had his hand , drawn back with a rock in his hand, as you have just stated, and while Will Mason was standing near him, did it make any impression on your mind, and, if so, what was that impression ?”

Witness would have answered:

“Yes; it did make an impression on my mind, and that impression was that Oscar Shelton was going to immediately attack Will Mason with the rock, and that he was going to immediately strike him with the rock.”

This was offered ag a part of the res gestae, and because it was an original impression of the witness, viewing the facts as he saw them at the time of the occurrence, and for which no evidence could be well substituted, and that it was a part of the transaction, illustrating the effect likely to be produced by the conduct and acts of the deceased upon the mind of the defendant at the time of the shooting. The state objected because immaterial, irrelevant, leading, suggestive, and calling for the conclusion of the, witness, which was sustained by the court. The court signs this bill by stating that this witness was some distance away, and his statement would be simply an opinion when the jury had all the facts and were in as good a position to form an opinion as the witness. This question came before us in the case of Latham v. State, 172 S. W. 797, and was fully reviewed in an opinion on rehearing by Judge Harper. That case fully sustains the position of appellant. The court was in error. It is unnecessary to review the Latham Case, or the authorities cited. It announces the correct rule.

These are the two main propositions stressed by appellant in his brief. He also urges that the charge is not in accord with the law nor with the rulings of this court on former appeal. Looking to another trial, and without reviewing seriatim these questions, it may be advisable to call the court’s attention to the language employed in the charges. Thé charge on provoking a difficulty, to say the least of it, is very inartisti-cally drawn. In this connection the court charged the jury, in connection with self-defense, that:

“If you believe beyond a reasonable doubt that the defendant, after he and deceased were separated in the first difficulty in the field, left where the deceased was and afterwards returned to the deceased armed with a pistol and went to where the deceased was picking cotton, and by his acts or words, or by both words and acts, made with the intent and purpose of provoking a difficulty with the deceased, and with the apparent intention of killing the deceased or of inflicting upon him serious bodily injury, and that such acts or words or both together, if any there were, were reasonably calculated to provoke the deceased to make an attack on the defendant, or to cause the deceased to attempt or to threaten to do so; and if the same was so used by defendant or made with such apparent intent, and if you find that under such provocation, if any, the deceased made a demonstration which reasonably indicated to the defendant that he was then in danger of death or of such serious bodily injury at the hands of the deceased; or if you believe that said acts or words, or both taken together, were reasonably calculated to provoke, and did provoke, the deceased to make an attack on the defendant— then you are instructed that the defendant could not justify the homicide on the ground of self-defense ; and if he then shot and killed the deceased, under such circumstances, with malice aforethought, he would be guilty of murder.”

The latter clause of the charge is in the alternative as to what had previously been given by the court. In order to provoke a difficulty defendant must do something, or utter words which do provoke the difficulty. If defendant provoked the deceased to make an attack on him in order that he might have an opportunity of killing him, the homicide would or could be murder; but if less than intent to kill, it would be manslaughter in case of a killing. It is not sufficient that it was calculated to provoke the difficulty. It must provoke it. But that is referred to more to call attention to what follows in the court’s charge. In this connection he further charged on this issue:

“You are further instructed: (I) That if you believe that the defendant did not go to the deceased in the field with the intent and purpose of provoking a difficulty with the deceased; or (2) if he did do so, if when he reached the deceased the defendant did not then use any words or commit any acts with the intent and purpose of provoking a difficulty with the deceased with the apparent intent of killing the deceased if he resisted the same, or of inflicting serious bodily injury upon him; or (3) if you believe from the evidence that the defendant did go to the field with the intent and purpose of seeking the deceased, and after arriving there that he did use words or commit acts that were calculated to provoke the deceased to make an assault upon him, but you further believe that the defendant did not do so with the intent and purpose of provoking the deceased to make an attack on him for the purpose of killing the deceased or of doing him some serious bodily injury — then you are instructed that if you believe either one of the above three propositions, or all of them, you find in favor of the defendant on the issue of provoking a difficulty.”

Intent and act must concur. The difficulty must thereby be provoked.

Several objections are urged to this charge. One, that it is on the weight of the evidence; it is negative and resolves the doubt in favor of the state and against the defendant, and places the burden on the defendant, and this is emphasized by reason of the fact that nowhere in this part of the charge, when he quits the alternative, is the jury charged to give appellant the benefit of the reasonable doubt. In some of the decisions it has been held that where a charge of this sort is given, which apparently throws the burden of proof upon the defendant, as this charge does, it was subsequently cured or rendered of no serious damage by reason of the fact that the court would then in that connection charge the jury, “or if you have a reasonable doubt of this proposition, you will acquit,” but that is not in this charge. It begins by telling them that if the jury should believe the defendant did not go to the deceased in the field with the intent and purpose of provoking a difficulty with the deceased, etc. They do not have to find affirmatively that he did not. It being sufficient if there was a reasonable doubt as to his purpose — and the testimony brought that issue sharp in this case — the jury should have been told to resolve the reasonable doubt in favor of appellant.

Again, this charge does not inform the jury under the circumstances of what appellant would be guilty, or what should be the verdict of the jury in case they found for him on the issue of provoking a difficulty. Manslaughter was charged in the case as well as murder. Self-defense was in the case, and provoking the difficulty was used by the state to cut off appellant from his theory of self-defense. If appellant went back and provoked the difficulty for the purpose of killing or inflicting serious bodily injury, or if he provoked even for a misdemeanor contact, appellant would be debarred of self-defense, but the court does not tell the jury in this charge what their conclusion should be if they found favorably for defendant on the issue of provoking the difficulty, and this is emphasized by the following charge:

“You are instructed that the defendant had the right to arm himself if he believed that he was in danger of death or serious bodily injury from the deceased, and to approach the deceased with the intention and purpose of adjusting their differences.”

That is all there is in the charge with reference to the right of the defendant to arm himself and approach the deceased and demand an explanation, or to ascertain his intent and purpose. As we understand the law, appellant had this right. The evidence is in the case making the issue. Now if he went to see the deceased for the purpose of adjusting the difficulty and settling that trouble amicably, and deceased made the attack on him, he certainly would have the right of self-defense, but the jury was not so told. Nor is the jury anywhere informed of defendant’s rights under that phase of this record. This question has been often discussed, and in many cases that might be cited, but we will go no farther back than Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. If he went back to adjust the difficulty amicably with deceased, and deceased made an attack on him, he would have a right of self-defense. This was an issue in the case, which antagonized sharply and critically the question of provoking a difficulty. The state contended defendant went back and provoked deceased to enter into a difficulty in order that he might kill him or inflict upon him serious bodily injury. The proof shows he did kill him. Appellant’s theory was that he went back to adjust matters, and when he reached within a few feet of where deceased was, he threw off his cotton sack and grabbed a rock and threatened to kill appellant, and had it in a striking attitude when he shot. This evidence was offered by the defendant to meet the state’s evidence that he had gone off and armed himself with a pistol, and said, before getting his pistol, that he was going to come back and have it out with deceased, and when he returned said to deceased, in substance, “You have been wanting to ' make trouble all along.” Now under those circumstances the issue was sharply drawn as to whether he came back to provoke the difficulty, after arming himself, or whether he had the pistol before he went away and came back, after concluding not to have deceased arrested, to talk the matter over with him and see if they could not adjust the trouble, and when he came deceased was the aggressive party, as he had been in the first difficulty. These were matters of fact, and could not be decided by the court, but must be solved by the jury under appropriate instructions. The state had a right, perhaps, under this testimony to have the charge of provoking the difficulty submitted to the jury. It was so held on the former appeal, but the defendant had the right to meet this issue of provoking a difficulty, as was decided in Shannon v. State, supra, by showing he went there, not for the purpose of killing him, but to adjust their troubles if he could.

This much has been said with reference to the charge, so that upon another trial those matters will not be the subject of criticism. I have not taken up the exceptions seriatim to the charge as presented, but have gone over the matter in a general way. There are quite a number of those exceptions and special charges asked, which were refused.

There is another question, presented by bill of exceptions, it may be well enough to notice. Mrs. Mason, mother of appellant, testified, and was asked if she knew whether Oscar Shelton “was a fighting dangerous man and a man of high temper,” to which witness answered, “Yes; we considered him so.” After this question had been answered, the county attorney objected, and requested the court to withdraw it from the jury, which the court did. Without going into any detailed statement of the bill and incidental matters, we think this was error. It is true the statute provides in homicide cases, where t'hreats come as a part of the case, the defendant may introduce the general reputation of the deceased as being a violent and dangerous man and one likely to execute threats. This is a statutory rule, and based upon the idea that general reputation would be known in the community and therefore to the defendant, and this by reason of the fact it was general reputation. By this means and under the terms of the statute the defendant may prove the bad reputation in these respects of the deceased. However, this does not preclude the defendant from proving that deceased was a dangerous man by any testimony which showed that fact, and that the defendant was aware of that fact. This question came for pretty thorough adjudication in Childers v. State, 30 Tex. App. 100, 16 S. W. 903, 28 Am. St. Rep. 899. Without going to the decision, hut repeating from the syllabus or headnotes, it is said:

“The character of the deceased as a dangerous and desperate man might have been proved by general reputation, but that such proof might have been made did not deprive the defendant of the right to prove that he had received information of the deceased’s character from other sources. It was immaterial from what source he received such information, if it was reasonably sufficient to create, and did create, in his mind the belief that deceased was a dangerous and desperate man. His belief and the reasonableness of it were questions of fact for the jury to pass upon, and he was entitled to have the jury placed in possession of all the facts known to him, and which he claimed influenced him in committing the homicide, to the end that the jury might view the appearances of danger from his standpoint.”

This is a very clear, lucid statement of the rule, and so far as we are aware it has been followed in the decisions of this state. It is a correct rule. The question is not one so much of reputation, but.of fact, which can be proved by reputation or by knowledge of the facts independent of the reputation on the part of the defendant. Of course, these matters must be brought home to the knowledge of the defendant, and the record in this case shows abundantly that he did know these facts, and that he knew the man practically all his life, and that he was afraid of him. Pie had threatened to kill him if he did not leave the country, and he left the country two or three times, and returned, and these threats were renewed. See, also, Spencer v. State, 59 Tex. Cr. R. 217, 128 S. W. 118; Brooks v. State, 24 Tex. App. 274, 5 S. W. 852; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Walker v. State, 28 Tex. App. 503, 13 S. W. 860.

The answer of this witness as detailed, we think was sufficiently in compliance with the statute, even under the general proposition. She said, yes, she knew it, and that they regarded deceased as a fighting and dangerous man. All the people around there seémed to have known all the parties, and knew the standing and reputation of both, and knew the circumstances and incidents that occurred. Of course, as to the fact that the man was dangerous, and of which appellant had no knowledge, isolated acts might not be provable; but, where he knew his dangerous character from facts and circumstances, he could prove the fact that he was a violent and dangerous man independent of general reputation. This he could prove by general reputation, or if he had knowledge independent of general reputation, he could as well so prove. Upon another trial, if this testimony is offered, we think it should be admitted.

For the errors indicated the judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). The trial judge was clearly right in refusing to permit Albert Mason to testify the impression made on his mind by what he said deceased did when he picked up a rock. Men are neither condemned nor exonerated by the impression made on the mind of another. The decision in the Latham Case to the contrary is not the law. So the court was correct in excluding the testimony of Mrs. Mason as to deceased being a dangerous, etc., man. The cases cited by Judge DAVIDSON do not so hold. They are not in point.

About the only just criticism of the court’s charge is in the second paragraph of the eighth subdivision, wherein he submits the converse of the first paragraph in numbers (1), (2), and (3), in not following “if you believe” with “or have a reasonable doubt.” It may be that, taking the charge as a whole, this even was supplied.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    KNIGHT v. STATE.
    (No. 3943.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    1. Criminal Law <§=>586 — Continuance-Right to.
    A continuance is no longer a matter of right, but is one addressed to the sound discretion of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1311; Dec. Dig. <®=>586.]
    2. Criminal Law <§=>595(1) — Continuance— Right to.
    Accused, having testified that the wife of the deceased told him deceased was going to kill him, was contradicted by the wife. Accused was convicted of murder, instead of manslaughter. Bold, that the refusal of a continuance to procure the attendance of an absent witness, who would have testified that the wife of deceased made the statement accused attributed to her, and that deceased told her he had in accused’s presence uttered slanders concerning accused’s girls, was error, for at any rate the jury probably would not have found accused .guilty of more than manslaughter, hg.d he believed deceased uttered the slanders.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. <&=>59o(l).]
    3. Criminal Law <§=5396(2) — Trial — Evidence.
    In prosecution for homicide, where the state introduced in evidence part of a conversation between accused and another relating to difficulty with deceased, accused should be allowed to show the whole matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 862; Dec. Dig. <§=>396(2).]
    Appeal from District Court, Hardin County.
    John Knight was convicted of murder, and he appeals.
    Reversed and remanded.
    Stevens & Stevens, of Houston, Singleton & Nall and Coe & Coe, all of Kountze, and Lane, Wolters & Storey, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement in the state penitentiary.

The state’s ease is that ill will existed between appellant and his brother-in-law, J. M. Wilson, deceased. The state does not undertake to show the specific cause of the trouble between the two men, and the reason for the existence of the ill will, further than to show that deceased had been informed that appellant had employed Eugene Dagle to whip him (deceased). With this proof, the state then showed that on the morning of the difficulty appellant went to the town of Batson, armed with a shotgun, and went into the Mateson saloon and looked around in there as if seeking some one, and then went on out in front of Perkins’ butcher shop. After he had been sitting there a few minutes deceased came driving down the street, as the state contends, with a whip in one hand and the buggy lines in the other. As he got opposite appellant, appellant shot; deceased falling out of the buggy. After he fell, appellant shot again; and while deceased was on his all fours struggling to get up, appellant loaded his gun, stepped near to him, and again shot him.

The testimony offered in behalf of appellant would show ill will of long standing existing on the part of deceased; that during the week before the homicide deceased, while talking to EL McClendon, had said .nothing but a shotgun would settle the trouble between him and appellant, and during the conversation had made remarks severely reflecting on the family and daughters of deceased. Appellant, his wife, and daughters testify that two days after this conversation with McClendon deceased came to the home of appellant, armed with a shotgun, with the apparent intention of killing appellant, but was prevented by Mrs. Knight and the flight of appellant; that as he left he called appellant’s daughter ‘a God-damned white-headed little bitch,” and called to appellant, “God damn you, you needn’t run, I am going to kill you anyhow.” Mrs. Budrou and her son, Gus Budrou, both testify that on Saturday before the homicide deceased was at their home, and in a conversation with them, Gus Budrou testifies, he said:

“ ‘Mrs. Budrou, I guess you heard that I killed John Knight?’ He was talking to my mother. She said, ‘No, Mr. Wilson, I heard that you tried to kill him;’ and he said, Wes, I went there to kill him; but I didn’t kill Mm; his wife and one of his girls was the cause of me not killing him;’ and he said, ‘Mrs. Budrou, this will never be settled until one of us dies;’ and he said, ‘The man that pulls the trigger first is the man that lives the longest.’ This is all about his bunch of bitches. He was referring to Mr. Knight’s girls when he used those names. He was talking to mamma, and she said, T thought they were ladies, and X didn’t know they was that kind of people:’ and he said, ‘Mrs. Budrou, you know that old negro Glory — negro woman in Batson?’ And she said, ‘Yes;’ and he said, ‘They are lower down than her.’ And she said, ‘You ought to be careful how you are talking that way; you know, if Mr. Knight gets hold of that, there is liable to be trouble.’ And he said, ‘X don’t care if he gets hold of it or not; you can tell the old son of a bitch if you want to.’ ”

Gus' Budrou also testifies he told appellant about this conversation the same day. Appellant then testifies that, after having been told of these matters by McClendon and Gus Budrou, he purchased some buckshot shells and carried his gun with him to defend himself. Mr. H. C. Camp testifies that he had some business with appellant, and while on his way to see him he met Mr. Wilson, the deceased, and Wilson had said:

“If you have got any business with that old bastard, you had better fix it up, because I am going to fix him when I catch Mm from the house.”

Defendant’s testimony would show that he was informed of all these matters, and that he made an engagement with Mr. Camp to meet him in Batson on the day of the homicide, and he was there for that purpose, and says he was in front of Perkins’ ‘butcher shop, waiting for Mr. Camp, as that was the place they had agreed to meet. He and his witnesses would have deceased come driving down the street, and as he got opposite appellant he reached with his right hand into the bottom of his buggy, looking at appellant, when appellant shot. Appellant testified that from the previous acts and conduct of deceased, and the conversations with deceased reported to him, he believed deceased was reaching for a weapon with which to kill him.

The above synopsis presents a general outline of the two theories, and is sufficient to render intelligible the disposition of the three questions presented by appellant for a reversal of the case.

When the case was called for trial appellant moved to continue the case on account of the absence of Mrs. Mary Riley, whom the record shows was prevented from attending court by the sickness of one of her children. By Mrs. Riley appellant states he expected to prove the facts hereinafter recited. In passing on the question of whether or not error was committed by the court, the matter must be viewed in the light of the entire record, when it was again presented as error in the motion for a new trial. A continuance is no longer a matter of right, but is a matter addressed to the sound discretion of the court, and the court has a right to and should view the application in the light of the evidence introduced on the trial, in passing on whether or not appellant should be granted a new trial on account of being deprived of the testimony of the witness. On the trial of the case appellant, when testifying as a witness in his own behalf, testified that Mrs. Wilson, wife of deceased, prior to the homicide, had told him:

“Wilson is going to kill you, and you had better watch him.”

After he had so testified, the state called Mrs. Wilson as a witness and she testified:

“I never told John Knight that he had better watch my husband. I never told John Knight that my husband was going to kill Mm.”

Attached to the motion for a new trial is the affidavit of Mrs. Riley, in which, after giving her reason for not attending court, she swears:

“That Mrs. J. M. Wilson, wife of deceased, did tell John Knight in her presence that said J. M. Wilson had threatened to kill him, the said John Knight, and that he had better watch the said Wilson.”

She furthermore says that she would testify that a few days prior to the homicide deceased had told her (affiant) that he had recently gone to the home of John Knight, appellant, and had drawn a gun on him, and had made him hold up his hands to his Jesus, and had said he would get John Knight yet, and that he had called Annie Knight a “white-haired bitch.”

On the trial of the case the state had seriously contested the fact that deceased had ever threatened to kill appellant, and seriously contested that deceased had ever at any time used language reflecting on appellant’s daughters. If, when defendant proved by other witnesses that deceased had threatened him, and had called his daughters bitches, etc., the state had not contested that fact, then the materiality of this testimony would not be so apparent. But it did contest both issues, and it is made manifest by the contention of the state’s counsel in this court. When the defendant testified Mrs. Wilson had informed him of the threat, the state called Mrs. Wilson, and she promptly denied doing so, and here is a wholly disinterested witness, who would swear that Mrs. Wilson did so inform appellant, and would swear that deceased admitted to her he had used language to appellant’s daughters that would inflame the mind of any man, and this was the first meeting after deceased had used the language he admitted having used. Appellant was found guilty of murder, and not manslaughter; whereas, if the jury had found that deceased had used about and to appellant’s daughters the vile language the witnesses attribute to him, and killed him on the first meeting, they would likely have found him guilty of no higher grade of offense than manslaughter. In the light of the evidence adduced on the trial, we think a new trial should have been granted on account of appellant having been deprived of the testimony of Mrs. Riley. It was material, and he had used diligence to secure her attendance. She swears she would have so testified had she been in attendance, and we cannot say her testimony would not have ' produced a different result.

The next contention of appellant is that the court erred in excluding what was said by Mrs. Knight during a conversation introduced by the state through Mr. Carouth-ers. Appellant testified as to what occurred when deceased came to his home on Saturday. In rebuttal the state called Mr. Ca-routhers, and had him detail how appellant had told him the occurrence happened, and they varied materially on one or more important statements. Appellant testified that when deceased asked if he had not employed Dagle to whip him, and appellant replied, “No,” deceased responded, “There is no apology accepted in this case.” Carouthers testified that appellant, in telling him about the transaction, had said deceased remarked, “Then there was no apology to make.” Mrs. Knight’s remarks would shed no light on which was the correct version as to that statement, and we would not reverse the case alone because of the exclusion of her remarks. However, on another trial, if the state seeks to elicit a part of the conversation occurring at this time as evidence against appellant, then, if appellant desires to do so, he should be permitted to introduce what was said by all the parties engaged in that conversation, if it tends in the least to throw any light on the language of appellant that it is sought to use to his detriment.

As to the newly discovered testimony, we do not deem it necessary to pass on the question of whether or not it presents error. On another trial it will not be newly discovered, and can be introduced, if appellant desires to do so.

The judgment is reversed, and the cause is remanded.
      <fc»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    O’TOOLE v. STATE.
    (No. 3968.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    1. Vagrancy <S=^3 — Prostitution—Evidence —Sufficiency.
    In a prosecution for vagrancy charging accused with being a common prostitute, evidence held sufficient to sustain a verdict of guilty.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. <S=>3.]
    2. Criminal Law <g^826 — Trial—Requesting Charges after Argument.
    Where on the trial of such charge defendant submitted requested charges after the argument had closed, it was not error to refuse such charges.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dec. Dig. <®^>826.]
    3. Criminal Law <S==s1036(1) — Appeal—Objection to Testimony.
    Where, on appeal from conviction in such prosecution, defendant asserted error in the admission of police officers’ testimony as to her general reputation, but the bill of exceptions showed that defendant excepted on the trial only to parts of such testimony, and that as to them her objection was sustained, no reversible error was presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640; Dec. Dig. <©=> 1036(1).]
    4. Vagrancy <®=»3 — Evidence — Admissibility.
    In a prosecution for vagrancy in that accused was a common prostitute, testimony that people inquired of the witness where defendant’s family lived, or asked the witness who lived in the house where defendant lived, was admissible.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. ⅞⅛>3.]

      5. Criminal Law <§=»1045 — Tkiai>-Evidence —Motion to Stbik®.
    Where on appeal the bill of exceptions showed that defendant’s motion to strike out evidence was filed with the clerk, but that the attention of the court was not called to it until defendant’s motion for a new trial came up for hearing, and that the court made no notation at all on the motion, no error was presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2652, 2685; Dec. Dig. 1045.]
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Etoy O’Toole was convicted of vagrancy, and she appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of vagrancy in that she was a common prostitute from on or about October 1, till October 24, 1915, and her punishment fixed at a $25 fine. The state introduced the sheriff of Lamar county, three of his deputies, the constable, and one of his deputies, the city marshal of Paris, and one policeman, who each and all swore that they knew appellant and knew her general reputation as being that of a common prostitute. The sheriff and one of his deputies testified that, during the time she was charged with being a common prostitute, they arrested her for being drunk, and the sheriff testified that, when he arrested her, she was riding in a buggy with two young men and lying in the lap of one of them; that they put her in jail when they arrested her.

Mr. Reed testified that he lived near the corporate limits of Paris, near where appellant lived; that, during the three weeks appellant lived near him, just out of the city limits, people came to his house and inquired of him who lived at a certain house, which was where she lived; that this occurred both in daytime and at night; that on one occasion he saw a man hunting for her house as early as 2 o’clock in the morning; that he had seen persons going to the house in automobiles ; that he lived in Dr. Lewis’ house, and ho had complained both to Dr. Lewis and the officers about her living there, and telling Dr. Lewis he would like for him to have them move; that he had seen women at the house go off with men in automobiles; that there were two or .three women and a man living where appellant resided. The people who inquired of him about the house where she resided never told him what they wanted.

Appellant’s mother testified that there were a few people who came to her house, but she supposed no more than visited other people; that appellant resided with her; that she had never seen her at any time do anything unbecoming a lady; that, if she ever did anything wrong or her relations with men were bad, she never noticed it, and did not know it; that appellant told her she had a drink or two and was asleep when she was arrested; that, while they were living at Paris, people living near them complained and wanted them to move; and that they told lies on them to the officers, and the officers came to see them.

Appellant herself testified: That she had been married. That she was 20 years old and resided with her parents, just outside the corporate limits of Paris. That her sisters Minnie and Lula “are now living with my father and mother, and have been living with them for two or three months.” That they all lived together when the complaint herein was filed against her. That a few people came to see them and occasionally, about once a week, young men would come to see her sister and herself. That, when they arrested her, they told her they did so for being drunk. She denied that she was then drunk, and said she had not taken but two little drinks of whisky. That, when she was arrested, she was riding in a buggy with two young men. That it was a little cold, and she had pulled her shawl up around her head and was resting her head on the shoulder of one of the young men when riding in the buggy. That she had not been tried for being drunk. She said that she had never had sexual intercourse with any one except her husband, and that she knew that she had never acted in such a manner in any way that would cause people to think that of her. She admitted that, on one occasion, the officers, while living where they were, said something to them about moving, but it was because people told lies on them.

The above is the substance of the testimony in full.

Appellant earnestly contends that the evidence is insufficient to sustain the verdict. This is the only serious question in the case. We have carefully considered it, and regard it as rather meager. Yet, we are not prepared to say that it is not sufficient to sustain the verdict, and do not feel authorized to reverse the case on that ground.

The court gave no written charge whatever, declining to do so, clearly as authorized by the statute (article 739, O. C. P. 1911), and decisions thereunder. Appellant requesting in writing some charges, the court expressly refused them, because they were submitted to him after the argument had closed. The judge had notified both parties beforehand that he would give no written charge.

After the trial appellant presented a bill to the court, complaining of the admission in evidence of the officers’ testimony as-to said general reputation of appellant, but the court expressly states that appellant excepted at the time only such testimony before October 1st and after October 24th, and that he sustained her and excluded such testimony as thus objected to. As appellant’s bill is qualified, it presents no reversible error.

She also has a bill showing that she objected to the testimony of said Reed, where she claimed Mr. Reed testified that people inquired of him as to who lived at a certain house. The judge, in qualifying the bill, states that the witness testified that these people inquired of him where defendant’s famil3>- lived, instead of asking who lived in the particular house. Under the authorities, we think Mr. Reed’s testimony was admissible, and especially as qualified by the court in allowing the bill.

Appellant, after the trial, presented to the court another bill, wherein she claims that she made a written motion to strike out all the evidence as to said general reputation of appellant. The court states that said motion was filed with the clerk, and that his attention was not called to it until the motion for a new trial came up for hearing, and that he made no notation on it at all. Of course, as thus presented, this presents no error.

As to two charges appellant requested, the court states that he gave no written charge at all; that appellant’s attorney was permitted to argue the law and read it to the jury, and the county attorney made no denial of the law as contended by appellant. As appellant’s bills are presented and qualified by the court, none of them show reversible error.

The judgment will be affirmed.
      <gr^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. PRENDERGAST, P. J.

text:
    HILL v. STATE.
    (No. 3955.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    Rape <§=51(1) — Stattjtoby Rape — Conviction Reveesed.
    A conviction of statutory rape upon very weak evidence, where objections were made in admission and exclusion of evidence and refusal of instruction, will be reversed.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 71; Dec. Dig. <⅞=>51(1).]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Mills County; John D. Robinson, Judge.
    E. A. Hill was convicted of rape, and appeals.
    Reversed and remanded.
    J. C. Darroch, of Goldthwaite, and Wilkinson & McGaugh, of Brownwood, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

I cannot concur in the af-firmance of this case, and will state my reasons.

In the first place, the evidence is very weak, if in fact sufficient to sustain a conviction. Appellant was indicted, charged with the offense of rape on his daughter, Viola, when 13 years of age. Viola swears most positively that her father had never had sexual knowledge of her. She was called as a witness by the state, and in answer to an inquiry stated: “He (my father) did not have intercourse with me.” What she testified before the grand jury is not in the record before ns, and if it were (whatever that testimony may have been) it would be no evidence of appellant’s guilt. He can only be convicted on evidence given by the witnesses on this trial, and the girl alleged to have been raped most emphatically denies it. However, five members of the grand jury say that appellant was before that body twice, and when first before it he admitted having penetrated the girl, although denying that there was any emission. They say when he came back the second time he denied having penetrated the girl, but admitted improper fondling of her person. The foreman of the grand jury and another member of that body say they were present when appellant was before that body, and they testify that on both occasions he denied having sexual intercourse with the girl. So the matter of whether or not appellant made a confession before the grand jury is a disputed fact, but to concede that on this conflict of testimony a jury would be authorized to find that he admitted the fact, still it has always been held that a confession alone is insufficient to sustain a conviction. Harris v. State, 28 Tex. App. 308, 12 S. W. 1102, 19 Am. St. Rep. 837; Brady v. State, 32 Tex. Cr. R. 264, 22 S. W. 924; Nolan v. State, 60 Tex. Cr. R. 5, 129 S. W. 1108, Ann. Cas. 1912B, 1248; Layton v. State, 52 Tex. Cr. R. 513, 107 S. W. 819; Ellison v. State, 59 Tex. Cr. R. 3, 127 S. W. 542; Follis v. State, 51 Tex. Cr. R. 190, 101 S. W. 242; and cases cited in these opinions.

It is also the law that, while a confession alone is insufficient to sustain a conviction for crime, yet it may be considered in connection with other facts and circumstances in the ease in proving the corpus delicti. Kugadt v. State, 38 Tex. Cr. R. 694, 44 S. W. 989, and cases cited in Branch’s Crim. Law, § 235. We then must look to the record for other facts and circumstances in aid of the confession, which tend to show that a crime has been committed, and appellant guilty of the crime, if a crime is shown. It must be remembered that the girl alleged to have been raped emphatically denies that she was raped by appellant. Then what other matters are in the record, outside of the confession, which tend to show that a crime has been committed? The state called Dr. Campbell as a witness, and he testified he examined Viola and found that her hymen had been ruptured. If this was all of the doctor’s testimony, it might tend to show that some one had had carnal knowledge of the girl; but that is not all of his testimony on direct examination. He says the rupture could have been caused by masturbation, by use of the fingers, by accident, or other causes, and then adds:

“I found she had a very small yagina. I do | not think it was possible for the defendant to i penetrate her past the vagina without extending the canal. I do not think it would be possible for a male organ to penetrate as small a vagina as she had.”

This testimony was all given on direct examination, without reference to the cross-examination, and, if we take the testimony of this expert witness, he says from an examination of the girl he does not think she had been penetrated by the male organ of a man. And this is all the testimony, outside of the alleged confession, to prove that the girl had ever been penetrated by any man.

I am inclined to think it insufficient to show that the crime had in fact been committed, in the face of the positive denial of the girl alleged to have been wronged. But concede that, weak though it be, it is sufficient to show that a crime had been committed; what is there in the record to show that appellant was the criminal outside of the alleged confession? The only fact proven was that he sometimes slept in the same bed with his 13 year old daughter. The mother says she also slept in the same bed with them, but the daughter says her father sometimes alone slept in the same bed with her. If the daughter is correct, that he sometimes alone slept with her, then this gave an opportunity, but nothing more, and the daughter says he did not avail himself of the opportunity, and this is proven, not by appellant, but by the state on direct examination of the girl. That a father sleeps in the same bed with his 13 year old daughter may be a suspicious circumstance, but certainly nothing more, if that. These are all the facts in the record that can be construed to aid the alleged confession in proving that a crime has been committed and appellant the criminal, and the writer extremely doubts the sufficiency of such testimony. At least it is very weak, and if improper testimony was admitted, which might or could have influenced the jury, then certainly a verdict, based upon so unsatisfactory evidence ought not to be permitted to stand.

Appellant introduced Lee Ohancelor and Hugh Henry, who say they had lived in the same community with appellant for 22 years, and Rev. J. W. Collin, pastor of the Baptist Church, who says he has lived in the same community for 4 years, and they all swear that his reputation as a good, moral, law-abiding man is good. On cross-examination of Messrs. Chancelor and Henry, the state asked them if some 13 years ago appellant had not been charged with having had intercourse with a niece. They said such rumor had been in circulation, but at appellant’s request it was investigated by his church, and it was found without foundation, and that James Scroggins, who had put the report in circulation, wrote a letter to appellant in which he admitted he wronged appellant in making such a charge, and asked the forgiveness of appellant. The state, having thus fallen down on proving anything hurtful to appellant’s reputation prior to the time this charge was brought against him, was ¿permitted, over the objection of appellant, to prove that since this charge had been brought against him “they had heard that appellant had admitted he had had intercourse with his other two daughters, Mrs. Beshear and Mrs. Dean, in their childhood days.” I do not think what they had heard since this charge had been brought against him about his other two daughters was admissible, and it was of such a nature that it would have its weight with the jury, and could not be controlled by the charge of the court. It was inadmissible for any purpose. What they had heard about reports in circulation since this prosecution was begun could not, and should not, have been permitted to affect his reputation for all the years prior to the date of the institution of this prosecution. Such reports could and often are put in circulation by maliciously inclined persons, after prosecution is begun, and we have always understood the rule to be that, as affecting the source of knowledge and information of the witness, it is as to knowledge of acts and conduct prior to the institution of the prosecution that can be inquired into, and it is not reports, etc., growing out of the'prosecution, that become admissible as affecting the knowledge of the witness who testifies that prior to the institution of this prosecution the reputation of the person on trial has been good. This, in my opinion, illegal testimony about a report in circulation that appellant had admitted having intercourse with his other two daughters in their childhood days, heard of by the witness in this case for the first time, as shown by this record, by any one since the institution of this prosecution, was of a nature and character to aid otherwise a very weak case for the state, and, had it not been permitted to go to the jury, a verdict of guilty might not have been obtained. This question was before this court in Hopperwood v. State, 39 Tex. Cr. R. 18, 44 S. W. 841, and it was there held:

“Where a defendant is on trial, it is his character prior to the commission of the offense that may be inquired into, and not the character he may have had after the commission of the alleged offense, or what was said about his character after that time. On this subject, Mr. Rice, in his work on Evidence (volume 3, p. 610), quotes with approval what was said on this subject in Reid v.'Reid, 17 N. j. Eq. 101, as follows: ‘No rule is better settled or founded on clearer principles than that which excludes all testimony touching reputation founded on opinion expressed post litem motam.’ It is true the act charged against the defendant in this case is said to have •occurred prior to the commission of the offense for which he was on trial, but the witness had not heard that matter spoken of until after the commission of this offense; and evidently the discussion of the alleged theft in this case caused the other matter to be spoken of. So far as the record shows, these witnesses had not heard of the prior act until after the alleged commission of this offense. They did not previously know that he had ever been accused of any dishonest act. They had never heard anything mentioned of his character in this respect. Evidently, such testimony was inadmissible for any purpose.”

Again, when the mother was being examined, she was asked if her daughter ever made any complaint. The court refused to permit her to answer the question. I think, under the record in this case, this was error. The doctor had testified the vagina was very small and there could have been no entry without a rupture and laceration occurring, and that soreness and inflammation would ensue. If this condition had occurred, a child of the age of this one would certainly complain to the mother of such matters, and that no complaint had ever been made was a circumstance to show that nothing of that kind had occurred.

I also think that the charge requested, that unless they found the confession, if made, was freely and voluntarily made, it should not be considered, should have been given. The record discloses that intense ill will existed between one of appellant’s sons-in-law, John Beshear, and appellant; that this son-in-law was admitted in the grand jury room while appellant was being examined by that body; that this son-in-law had to be disarmed, and while appellant was testifying before the grand jury this son-in-law “got over Mr. Hill and shook his finger in his face.” This was not orderly proceedings in the grand jury room, and there is no reason shown why this son-in-law, who was not a member of the grand jury, was allowed to sit with that body, nor why he should be permitted to stand over a witness and shake his finger in his face while being examined, and Mr. Head says Beshear was permitted to propound to appellant questions about other matters while appellant was before the grand jury. Under the circumstances this record discloses, the charge, when requested by appellant, that if a confession was made, unless it was freely and voluntarily made, to disregard it, should have been given.

In my opinion the evidence to sustain a conviction is very weak, if not insufficient to sustain a conviction. It shows the prosecution is the outgrowth of a family row, and, taking the record as a whole, I am of the opinion the judgment should be reversed and remanded.

DAYIDSON, J. I concur in the reversal of the case.

PRENDERGAST, P. J.

(dissenting). Appellant was convicted of the rape of his own daughter Viola Hill, and his punishment assessed at eight years’ confinement in the penitentiary.

The uneontradicted evidence shows that the girl Viola was just about three months under 14 years of age at the time of the alleged offense. The indictment does not allege, nor does the proof show, that, if appellant committed the act, it was by force, fraud, or threats, but, if committed, it was by consent.

Five grand jurors testified positively that, when they were investigating the charge against appellant, he testified before the grand jury that, about the time charged in the indictment, he twice had sexual intercourse with his said daughter Viola, and indicated with his finger the depth of penetration, which was about an inch or more; that his purpose in putting his privates in her privates was to appease his passion; that he penetrated her to appease his passion; that one time he merely entered the lips, and the other time he “pushed it in that far” (indicating an inch or more), but that he did not ejaculate in her; that he had slept with her, or been in bed with her, at different times; that with his hand he had for some time fondled her privates, and he did that just because he wanted to; that, when he gave this testimony, his son-in-láw John Be-shear was present in the grand jury room; that, at one time during the examination of appellant, said Beshear got over him and shook his finger in his face, but that Beshear asked him no question as to his relation with Viola, but had reference to another matter. It seems that appellant and Beshear were hostile towards each other, for each was searched for weapons at the time they were before the grand jury; but there was no evidence whatever that either had any. Each of these five grand jurors further testified that appellant, in about 15 or 20 minutes after he was first before them and dismissed, returned, and then stated to them in substance .that he had studied over the matter since first before them, and decided that, if he said as he had previously testified he knew he would go to the penitentiary, that he did not want to take a trip to the penitentiary, and then denied his former statement that he had had intercourse with Viola, but at that time he also testified that he had fondled her privates with his hand. He did not then, or at any other time, swear that his first testimony was not voluntary, but merely as stated; that he did not want to go to the penitentiary. His testimony on that point was then taken down in writing, which he signed and swore to, and was:

“I have had my hands and fingers on her privates. I have had my hands on her privates as much as twice for licentious purposes.”

He also swore at this second time:

“I have never had intercourse with Viola. I have never touched Viola’s privates with my privates.”

The state introduced Dr. Campbell, who testified that, at the grand jury’s instance, he made an examination of Viola’s private parts, both by sight and with his finger, inserting his finger; that he found that the hymen had been ruptured, but, being so long after the alleged offense, lie could not tell what caused the rupture; and that her parts in that length of time would not show even if she had been penetrated. The examination was made something like ten months after the alleged act. This witness testified on direct examination, then on cross-examination, and then back and forth several times on redirect and recross examination. The effect of his testimony further was that it was frequently the case that the hymens of young girls was ruptured by the finger and by masturbation, and sometimes girls had no hymens at all, and that it was not unusual to find absence of the hymen, and that could be caused by the injection of the finger, or anything else, and that that was common.

Said girl, Viola, testified that she had never abused herself by inserting her fingers or anything of that kind in her privates; that she had never had her fingers in her privates. She further testified positively that her father had never had intercourse with her and had never fondled her person or privates with his hands or fingers. It appears that, when she was before the grand jury, she testified that her father had had sexual intercourse with her twice. On this trial she was shown to he very hostile to the state and very much in favor of her father. She refused to talk to the district or county attorney, but was repeatedly, according to her testimony, talked to by appellant’s respective attorneys, and that they saw her soon after she was before the grand jury, and that they had told her that, if she testified that her father had had sexual intercourse with her, they would send him to the penitentiary or break his neck, and that they advised her that the district attorney had no right to examine her until she was sworn as a witness. She further testified that she understood the law to be that, if she testified her father had Intercourse with her, he was liable to be hanged. She said:

“I would not swear a lie to get my father out of jail. Nor would I swear a lie to keep him from being hanged. I am sure of that. I know I would not swear a lie. I did not tell the truth before the grand jury. I told a lie. I did it through fear of John Beshear.”

She further testified:

“My father has slept with me at our home in Mills county, but not often. Nobody else slept in the bed with us.”

Her mother, appellant’s wife, swore:

“My daughter slept with her father sometimes, and I knew of it. I slept with them, too; all three slept in the same bed. That has continued all her life until lately. She sleeps with me now.”

Two other of the grand jurors testified that they were present at both times when appellant was before the grand jury and testified. These two each swore, in substance, that they did not hear appellant when he was first before them testify that he had had the two acts of sexual intercourse with his said daughter. The effect of their testimony as a whole is in a negative form; that they did not hear it. They thought they were where they could have heard him if he did so testify, but that he might have done so and they not have heard it.

Appellant put his general reputation as a law-abiding man in issue before the jury. Lee Ohancelor, for him, swore that he had lived a near neighbor to him for 22 years and was acquainted with his general reputation “as to whether or not he is a law-abiding man or otherwise,” “and that reputation is good as far as I know.” Mr. Hugh Henry, for him, testified that he had lived in the same community with appellant about 22 years and was acquainted with his general reputation “as to being a good, moral, law-abiding man”; “that reputation is good, and has been good all the time, as far as I know.” J. W. Collin, for him, testified that he was the pastor of a Baptist Church and had known and lived in the same community with appellant about four years; that he was acquainted with appellant’s general reputation in that community as to being a good, moral, law-abiding citizen; “and that reputation is good.”

The state introduced W. C. Johnson, who testified that he had lived in the same community with appellant for about eight or nine years; that he thought he knew his general reputation in that community as a virtuous or chaste man or otherwise. “I believe that reputation is bad.” On cross-examination, he testified that appellant’s reputation was not based on the prosecution in this case; that he had heard a number of people talking about his reputation, and among them were J. F. Blackburn, Janus Scroggins, B.. F. Stevens, Wylie Henry, J. J. Davis, Mr. Wiggins, A. J. Johnson, Fred Johnson, Mr. Jefferies, and Mr. Mayes; that a number of his neighbors had talked to him, and he had talked to them about it; that he did not know that he could call the names of all of them who had talked with him; that he had heard about all his neighbors speak about it. Appellant was a member of the Baptist Church. Mr. Collin was his pastor, and said witnesses Chancelor and Hugh Henry were members of the same Baptist Church. Mr. W. C. Johnson further testified that most of the men he had named as discussing appellant’s bad reputation were members of the same Baptist Church, except said Stevens, Jef-feries, and Blackburn.

Appellant then introduced Wylie Henry, who testified that he had .lived in the same community with, appellant for about 19 years and knew said W. C. Johnson, and that he had no recollection of having any conversation with Johnson or in his presence, wherein they discussed the character of E. A. Hill, and that he did not think he ever had any discussion with any party concerning his virtuous qualities and had never said anything detrimental to him. He said, however, that Mr. Johnson was an honorable man, and lie thought he was honestly mistaken as to him being one of the men who talked to him, but that either one of them, however, could be mistaken. Appellant then introduced J. T. Williams, who testified that he had lived in the same community 18 or 20 years; that he had never talked with W. C. Johnson in which he discussed appellant’s character. On cross-examination, he said he did not think he was ever present in any crowd when it was discussed, and that he was never present when anything was said about appellant’s conduct with his girls, or anything of that kind. He said, “Mr. Johnson and I have talked that.” Again, on redirect examination, he said that he had never said anything against the virtue of Mr. Hill in Mr. Johnson’s presence. On recross-examination, he further said: “We have discussed his conduct towards his own girls and other girls since this came up.” It is noticeable that neither Wylie Henry nor J. T. Williams testified to his good reputation, and none of his other neighbors, it seems, would so testify, except his pastor and two of his fellow members and fellow deacons, Ohancelor and Hugh Henry, and their testimony on this point is noticeable in that each testified only that his reputation was good “as far as I know.”

The court committed no reversible error in sustaining the prosecuting officer’s objection to Dr. Campbell answering that masturbation was very frequent in girls of the age of Viola Hill. She swore positively on this subject, as stated above, and the doctor was permitted to testify to any and every thing that would cause a rupture of the hymen in a girl.

Neither did the court commit any error in refusing to permit Mrs. Hill to testify that Viola had, about the time of the alleged rape or at any time thereafter, made no complaint to her of any ill treatment on'the part of her father. Judge White, in section 1073, p. 680, of his Ann. O. O. P., says:

“The rules with regard to evidence of outcry and complaint by the prosecutrix in' cases of alleged rape have no application to the rape of a female under the age of consent, because carnal intercourse with such female is rape, whether with or without her consent. Hamilton v. State, 36 Tex. Cr. R. 372 [37 S. W. 431].”

1 As stated above, Violai swore positively that her father never at any time had intercourse with her, or attempted to do so, or fondled her privates in any way at any time with his hands. Even if her testimony in this particular was untrue, the appellant’s sworn testimony before the grand jury, and the other facts and circumstances, would all show that, if the act was had, it was with her consent, and, of course, if with her consent, she would not complain to her mother; and the fact, if so, that her mother would have testified that she made no complaint, under the circumstances, would in no contingency present reversible error. Even if, under any circumstances, such testimony by her mother would have been admissible, it was so remote and would have had such a remote bearing on the case, if any, that the refusal of the court to permit it should not result in a reversal.

In the cross-examination by the state of appellant’s character witness Hugh Henry, he testified that he did not know that he had heard of the charges against appellant of having intercourse with his niece Ony Scroggins, yet such was the rumor as to some of his nieces; that he did not know how long it was rumored that he had intercourse with some of his nieces; that he did not know of it breaking out for several years, but that it was the rumor then; that, when this came up, the rumor about his having intercourse with’ his two older daughters came up, and it was not the general rumor that he had carnal intercourse with his niece and his two daughters, for one of them, Mrs. Dean, had to be excepted; that the rumor was about his niece and Mrs. Beshear and soon died away; that there had been nothing discussed of it for years. No objection whatever was made by appellant to this testimony or this cross-examination of his witness Hugh Henry.

After his witness Ohancelor on direct examination had testified, as shown above, about appellant’s general good reputation so far as he knew, the state, on cross-examination of him, without any objection at all by the appellant, had him testify that he and appellant were both members of the 'Baptist Church; that he was on a committee once to investigate him for carnal intercourse with another little girl; that some people said he was guilty; that he did not think a good many said he was guilty; that there was a general rumor up there that he had carnal intercourse with his niece, who was of tender age, and he gave her a calf for it; and that they investigated that. Then, on redirect examination, he explained that it was at appellant’s request that they had that investigation, and that to the best of their knowledge they found it to be false, and exonerated him; that, as well as he remembered, that was 13 or 14 years ago, but he did not remember just exactly how long. In substance, he further said that he saw a letter from Janus Scrog-gins, appellant’s nephew, to him, in which Scroggins said to him that he had done him a wrong and asked his forgiveness, etc.; that Scroggins was the man who had made the charge. Then the state again had him on recross-examination, and he testified that the investigation they made was of appellant’s improper conduct with Ony Scroggins. Then at the instance of the state, over appellant’s objection, he testified:

“I have heard since this came up that Mr. Hill has signed a sworn statement admitting that he had intercourse with his daughter, Mrs. John Beshear, a number of times, and commenced having intercourse with her from the time she was seven until the time she was married, and since this came up I have heard he was in the habit of having intercourse with his other daughter, Mrs. Dean. I heard it this morning that he did admit having intercourse with Ony Scroggins some time ago.”

After Rev. Mr. Collin had testified for appellant on direct examination, as sliown above, on cross-examination, at the instance of tbe state, be testified: That appellant was a member of bis church, and they worshipped together. He was pastor, and appellant deacon. That he had seen Mrs. Dean. “I did not understand they had a ruckus about the old man having carnal intercourse with her.” No objection whatever was made by appellant to this part of the witness’ testimonyl on cross-examination. But, over his objections, the court permitted the state to have Rev. Mr. Collin to further testify, on cross-examination:

“I have heard it about his niece. She is married, and that all occurred before I came there, hut I do not suppose she was married at the time it occurred. I have not heard it rumored in the country that he had intercourse with the two older daughters until this case came up.”

To the testimony above last quoted, only, appellant excepted. He did not except to the balance of this witness’ cross-examination, which was:

“I have not heard him charged with having intercourse with any other little girls in the neighborhood. I do not know that he has not. As to whether a man who is charged by. his neighbors with having intercourse with his little niece’ is a man of good moral character or not, it is owing to whether it was true or not.”

I have stated both of these matters in two of appellant’s bills so as to discuss them together. His objections to said portions of the testimony of each of these witnesses were: (1) Because their answers showed that they had not heard of said matters until after the alleged commission of the offense in this case; (2) because the knowledge or information of said witnesses as to the rumor in the country that he had had intercourse with his two older daughters was subsequent to the alleged commission of the offense in this case.

As to this testimony, the court correctly charged the jury as follows:

“Certain evidence has been admitted in your hearing relating to the defendant’s conduct with certain other persons, including his daughters other than Viola Hill, and you are instructed that such testimony was admitted solely for the purpose of showing the means of knowledge of the witnesses as to the reputation of the defendant in the community in which he lives, and you cannot consider the same for any other purpose nor as evidence of the defendant’s guilt as charged with Viola Hill.”

As shown above, appellant himself put his reputation in issue, and of all his many neighbors he could find only three, his pastor and two fellow deacons, to only qualifiedly testify that his reputation was good. Another of his neighbors, Mr. W. C. Johnson, testified that his reputation was bad, and he knew quite a large number of his other neighbors, whom he had heard discuss his reputation as that of being bad. As shown also in the cross-examination of his witness Hugh Henry, no objection whatever was made on cross-examination of the charges he had heard against him in his community of having intercourse with his niece, Miss Scroggins, and at least one of his daughters, Mrs. Beshear. Then, I think it clear that the state had the right to probe, on cross-examination, his pastor and his two other fellow deacons to know if they too, had not heard of his illicit connection with his said niece and one or both of his other daughters, and perhaps others; and the fact that his pastor denied that he had ever heard of any such things, until after this prosecution began, and the two deacons, that it was discussed after this prosecution was begun, certainly would not render their cross-examination inadmissible. The jury had the right to know that, if all of these other witnesses had heard of the fact of his having intercourse with all these other parties, why it was that they had not heard it until this prosecution began. It was only on cross-examination this could be developed. What I have said about these bills applies to the testimony of J. T. Williams on cross-examination, objected to.

It will be noted that the state did not draw out this testimony on cross-examination for the purpose of having those witnesses testify to his bad reputation. All that the state was after was probing their knowledge when they qualifiedly testified to his good reputation. One of the greatest objects in cross-examination is to probe the knowledge of the witness when he testifies to any fact. It is also a well-known principle that great latitude is and must be allowed in cross-examination.

There are many cases by this court directly in point against appellant’s said contention. In Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 401, a rape case, in an opinion written by Judge Henderson, this court stated and decided a's follows: The defendant having placed Bell on the stand, by whom he proved his good reputation in the neighborhood in which he lived for chastity and virtue, on cross-examination the district attorney asked him:

“Did you ever hear your brother George Bell say anything about the defendant being too thick with Mattie Pickett? Tell us what you heard him say.”

To which the witness answered:

“I have heard him say that he was too thick with Mattie Pickett, but nothing about the other one.”

Various objections were made to this testimony. All of which is more fully shown by the bill and more fully stated in the opinion. Judge Henderson said:

“ ‘While particular acts of bad conduct are not admissible to assail character on the direct examination, a witness deposing to general character may be cross-examined as to the particular facts, in order to test the soundness of his opinion. and elicit the data on which it was founded.’ See 3 Rice on Crim. Ev. § 376; Jackson v. State, 78 Ala. 471; Steele v. State, 83 Ala. 20, 3 South. 547; 1 Tayl. Ev. § 352 ; 2 Star-kie, Ev. 304. The same author (Rice on Crim. Ev. § 375) uses the following language: ‘There can be no doubt that, when a witness is put upon the stand to attack or defend character, he can only be asked on the examination in chief as to the general character of the person whose character is in question; and he will not he permitted to testify to particular facts, either favorable or unfavorable to such person, but, when the witness is subjected to cross-examination, he may then be asked, with a view to test the value of his testimony, as to particular facts. In the eye of the law, the character of a person is to be ascertained by any inquiry as to what is generally said or thought of him in the community where he resides. Hence, when a witness has testified on his examination in chief that the person as to whose character the inquiry; is instituted bears a good character, his opinion and the value of it may be tested by asking the witness on his cross-examination whether he has ever heard that the person whose character is in question has been accused of doing acts wholly inconsistent with the character which he has attributed to him’ — citing State v. Merriman, 34 S. 0. 16, 12 S. E. 613. * * * It appears to us that the rule enunciated in these authorities states the correct and logical rule on the subject; and; applying that rule to the testimony admitted m this case, it occurs to us that the testimony was admissible, and that the court did not err in holding it so.”

This Forrester Case, and the principle announced in it, was recently cited and reaffirmed in Newell v. State, 145 S. W. 939, in an opinion by Judge Davidson. Mr. Branch also lays down the same rule in his Criminal Law, § 877, p. 561, and cites several cases from this court in support of his text. Holloway v. State, 45 Tex. Cr. R. 303, 77 S. W. 14.

Again, another principle is well established and applicable herein, which is that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541; Tinker v. State, 179 S. W. 573, and cases cited. I do not mean to intimate that any of said testimony elicited by the state was inadmissible. I think all of it was admissible.

Appellant complains that the court erred in refusing to give two special charges which he requested. One of these was that the jury must believe beyond a reasonable doubt that appellant penetrated Viola, “independent of any confession by him.” That is not the law. Kugadt v. State, 38 Tex. Cr. R. 694, 44 S. W. 989; Ingram v. State, 182 S. W. 290.

The other was, they must not consider his admissions before the grand jury unless they believe beyond a reasonable doubt said admissions were freely and voluntarily made. The evidence did not raise such an issue. He made no such intimation when before the grand jury at either time. However, there is nothing in either charge or bill which shows that they were presented to the judge before he read his charge to the jury. The bills each simply give the style, number of the cause, court, etc. Then that he requested the court to give the following charge, quot-

ing it. At the bottom of it is, “Refused,” and the judge’s name signed. More than two months after the court adjourned, appellant prepared, and the court then allowed, a bill stating that he requested the said respective charges and the court refused them, to which he excepted. In the first of them no reason is even then given, nor the facts stated on which it is claimed such charge ought to have been given. In the other, a brief statement of some of the testimony is given, on which he claims he based his request for said charge; but in neither of these bills does he show that these matters were presented to the judge at the time or under the circumstances required by the new amended statute on the subject. The main object the recent law had in requiring parties to object to the court’s charge and request additional charges before the judge reads his charge to the jury was that all such matters should then be called to the attention of the court specifically so that the court could then pass upon them, and not wait, as had theretofore been the law, until after the trial to present such matters to the trial judge. Since the new law on the subject, this court has uniformly, in a large number of cases, held that it could not, and would not, review such questions unless the bills and record show that they were thus presented to the judge in proper time. Ross v. State, 170 S. W. 306; Guiterrez v. State, 170 S. W. 717; Watts v. State, 171 S. W. 204. See, also, Byrd v. State, 69 Tex. Cr. R. 41,151 S. W. 1068; Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878. It is needless to collate the many decisions on this subject. However, in my opinion, neither of said charges should have been given.

As shown above, whether or not appellant had sexual intercourse with his daughter Viola was a disputed question. If the jury had believed the testimony offered by the defendant, they would have acquitted him. On the other hand, I think the facts and circumstances in connection with his admissions were sufficient to justify the jury to convict him. Evidently they believed the facts and circumstances on behalf of the state.

In my opinion the judgment should be affirmed, not reversed.
      (gssFor otter cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes