author: HARPER, J. PRENDER,GAST, P. J. DAYIDSON, J,

text:
    GRIMES v. STATE.
    (No. 3436.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.
    On Motion for Rehearing, April 21, 1915.
    Dissenting Opinion July 12, 1915.)
    1. Criminal Law <&wkey;59íD-CoNTiNUANCE— Absence or Witnesses.
    A motion for a continuance on account of the absence of witnesses is properly denied, where other persons present, who could have testified to the fact accused desired to elicit from the absent witnesses, were not called.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. <&wkey;>594.]
    2. Criminal Law <@^117034 — Appeal — Harmless Error — Examination or Witness-Leading Testimony.
    Where the evidence as a whole clearly established a date material to the prosecution, the fact that counsel for the state was allowed to lead the prosecutrix so as to have her clearly fix the date was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. 1170%.]
    3. Criminal Law >&wkey;1091 — Appeal—Bill ox Exceptions — Contents.
    A bill of exceptions complaining of the exclusion of a question presents no matter for review, where it did not show what answer the witness would have made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2S19, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    4. Seduction <&wkey;40 — Prosecution — Evidence.
    _ • Where the prosecutrix testified that she yielded solely on account of accused’s persuasions and entreaties, relying on his protestations of love and marriage, questions as to whether prosecutrix was capable of experiencing and did experience sexual desire do not call for material evidence.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. &wkey;40.]
    5. Criminal Law <&wkey;656 — Trial—Remarks op Court.
    Where the court overruled an objection to a question directing prosecutrix to answer it if she could, and the prosecutrix stated she did not know how, the action of the court was not erroneous as suggesting the answer, where it did not appear that the prosecutrix could have answered such question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. &wkey;> 656.]
    6. Criminal Law <&wkey;351 — Evidence—Admissibility.
    Evidence that accused fled the country, and that the officers had mailed out circulars in their efforts to apprehend him, but he was not arrested for three years, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. &wkey;>351.]
    7. Criminal Law &wkey;>656 — Examination op Witness — Remarks op Court.
    Where accused’s counsel was permitted to cross-examine the witness as rigidly as he desired, the court’s remark, when he desired to call the prosecutrix, that the state had closed, was not erroneous as forcing accused to introduce the prosecutrix as his own witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. <&wkey;> 656.]
    8. Criminal Law <&wkey;>1091 — Appeal—Bill op Exceptions — Supficienoy.
    A bill of exceptions, in a seduction case, to the exclusion of questions to the prosecu-trix as to when the first act of intercourse occurred, shows no error, where there was no offer .that she would have testified it occurred before the marriage promise.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2808, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933 2943; Dec. Dig. <&wkey;>1091.]
    9. Seduction <&wkey;50 — Prosecution—Instructions.
    A charge that by the term “seduction” is meant the leading of an unmarried female away from the path of virtue, and, before a conviction can be had, the jury must be convinced that accused had intercourse with prosecutrix within three years before the filing of the indictment, that the prosecutrix consented solely upon accused’s promise of marriage, that she was under 25 years of age, and at that time was virtuous, correctly charges the elements of the offense.
    [Ed. Note — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. <&wkey;50.
    For other definitions, see Words and Phrases ; First and Second Series, Seduction.]

      10. Criminal Law <&wkey;829 — Trial—Instructions.
    A refusal of requests covered by the charge given is not error.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;>S29.]
    11. Criminal Law <&wkey;1091 — Appeai^Bill op Exceptions — Motion por New Trial.
    The denial of a motion for new trial, sought on account of the misconduct of the jury, cannot be reviewed, where the affidavits were not included in the bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803. 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, • 2931-2933, 2943; Dec. Dig. <@=>1091.]
    On Motion for Rehearing.
    12. Criminal Law <&wkey;598 — Continuance-Denial.
    Where the trial continued for some days, but accused made no effort to have process issued for absent witnesses, who lived in the vicinity, the denial of his motion for continuance was not error; no diligence being shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. <&wkey;> 598.]
    13. Criminal Law <&wkey;603 — Continuance-Denial.
    Accused, who sought a continuance on the ground of absent witnesses, for whom no process had been issued, relied solely on a certificate of a physician that one witness was unable to appear and a statement by the other witness’ husband to that effect. Cn the motion for new trial he offered no affidavit showing what the testimony of the witness would be. Held that, under the circumstances, the court' was warranted in concluding the witnesses would not testify as alleged and denying the continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. <&wkey;> 603.]
    14. Criminal Law <&wkey;656 — Trial—Remarks op Judge.
    In a prosecution for seduction, where the date of the intercourse was in controversy, a remark by the trial judge, in sustaining the state’s objection to cross-examination of the prosecutrix, that the question asked had been asked the previous day, was not erroneous as a comment on the weight of the testimony; it appearing that the question in fact had_ been asked the preceding day.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. <&wkey;> 656.]
    15. Criminal Law <&wkey;llG6y¡ — Appeajm-Harmless Error.
    In such case, where there was no showing as to what the witness would have answered, the remark, if on the weight of the evidence, was harmless.
    [ltd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. <^= 1166y2.J
    16. Witnesses <&wkey;282% — Cross-Examination — Scope.
    The trial court has a wide discretion over the examination of witnesses, and may restrict unnecessary repetition in cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 92S, 990-992; Dec. Dig. <@=> 282y2.]
    17. Criminal Law <@=>1091 — Appeal—Bill op Exceptions — Instructions—Presentation.
    A bill of exceptions complaining of the refusal of a request must show when it was presented to the court for his action, and that the court ruled thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2815, 2816, 2SÍ8, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <@=31091.]
    18. Criminal Law <&wkey;830 — Trial—Instructions.
    A request having basis in the evidence, and also predicated on matters not raised, is, where the matters are commingled, properly refused.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2012, 2017; 830.]
    see Criminal Dec. Dig. <@=>
    19. Criminal Law &wkey;741, 742 — Trial-Jury Question.
    me creainuuy or witnesses ana tne weignt of testimony is for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1221, 1705, 1713, 1716, 1717, 1719-1721, 1727, 1728; Dec. Dig. &wkey;741, 742.]
    Davidson, J., dissenting.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    W. D. Grimes was convicted of seduction, and he appeals.
    Affirmed.
    Y. E. Middlebrook, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the crime of seduction, and sentenced to four years’ confinement in the state penitentiary.

We do not deem it necessary to recite at length the facts in the case, as in our opinion the evidence fully sustains the verdict of the jury. In the first bill of exceptions appellant complains of the action of the court in overruling his application for a continuance. In the motion for continuance he moved to continue the case on account of the absence of some 24 witnesses. In the bill of exceptions and the court’s order approving same, it appears that all the witnesses were in attendance on court during the trial of the case, except three, and that appellant placed none of them on the stand as witnesses after their attendance had been secured. He states he expected to prove by Mrs. William Medford that she heard the prosecuting witness state to her mother that her illicit intercourse with defendant had been going on for four years. He states he expects to prove the same facts by Mrs. Alph Stone and Mrs. Rose Scott. The prosecuting witness,' Miss Rebecca Stripling, and her mother, both testified on the trial of the case, and both denied that any such conversation had ever taken place between them. Mrs. William Medford attended court, but was not placed on the stand by appellant to prove that any such conversation took place. The attendance of Mrs. Stone and Mrs. Scott was not secured. The rule is that the refusal of a continuance will be upheld, where it appears from the record that the facts alleged to be provable by the absent witness were known by appellant to be within the knowledge of witnesses who are in attendance on court, and who are not placed on the stand to prove such facts. Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247; Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294, and cases cited in section 644, White’s Ann. Proc. In the motion it is also alleged that by the witnesses Luther Chandler, Melvin Pike, Lee Hand, Perkins Burrows, and Douglas Patton defendant expects to prove that they waited on the prosecuting witness and were acquainted with her age, and that she was more than 25 years old at the date of the alleged offense. All the above-named witnesses, other than Douglas Patton, were in attendance on court, and yet appellant introduced none of them as witnesses. As qualified and approved by the'court, he did not err in overruling the motion for a new trial on this ground.

It appears that the young lady got mixed in her testimony as to the year the baby was born, saying 1910, when the record discloses that the baby was born and indictment returned in 1911. It is complained that the court permitted counsel for the state to lead the witness in seeking to have the date correctly fixed. As the record as a whole, independent of her testimony, fixes these dates, the bill presents no error.

In bill No. 3 it is not shown what the answer of the witness would have been to the question propounded: “Did she ever have any sexual desire?” Consequently it cannot be reviewed as it is too incomplete. White v. State, 32 Tex. Cr. R. 625, 25 S. W. 784, and cases cited in subdivision 5, § 1123, White’s Ann. Proc. As the witness had answered she had not had any desire for sexual intercourse with defendant at the time the first act of intercourse took place, and she yielded to his persuasion and entreaties, relying on his protestations of love and affection and promise of marriage, we cannot see the materiality of the testimony sought to be elicited, if the bill alleged the answer expected to be elicited. And neither can we see the materiality of the testimony sought to be elicited by the question: “If she was capable of experiencing the sexual desire the first time she had sexual relations with defendant.” As before stated, she had testified that she had no such desire, and did not yield to appellant through lust or passion, or any desire she felt. The court, however, overruled the objection to the question and instructed the witness to “answer the question if you can.” The witness answered: “I do not know how to enower it.” Appellant contends that the court’s remark suggested the kind of answer for the witness to give, and that she gave the answer suggested. We do not know whether the average young lady could state whether or not “she was capable of experiencing the sexual desire” after she had testified- that she had never had such desire. At least the bill should have stated what he expected to prove by the witness, and the object and purpose of such testimony, if admitted.

The record shows that, when appellant learned that Miss Stripling was with child, he fled the country. This fact was admissible, as well as the efforts of Mr. Spradly to locate him, and the fact that he had mailed out circulars seeking to locate him, as well as the fact that it was three years before he was arrested. The contents of the circulars were not admitted, but only that circulars had been mailed, and the territory which had been covered by the circulars.

Appellant contends as the court stated, when he expressed a desire to recall Miss Stripling, “Very well, but the state had rested,” that this forced the appellant to introduce her as his witness. The court, in approving the bill, says:

“This bill of exceptions is approved with the qualification that the statement of facts be referred to on this question, and further that the witness did testify or was cross-examined by the defendant, and when the court made the statement to the defendant’s counsel that the state has rested its ease, if the court made such statement, it was merely to call the defendant’s counsel’s attention to such fact, in order that he might take up his side of the case.”

It is evident by- this qualification of the bill and the record before us that appellant’s counsel was permitted to cross-examine the witness as rigidly as he desired.

The next bill is very lengthy, and shows that appellant, after recalling the prosecuting witness, asked the following question:

“Now, I am not sure, but I believe I asked you the question yesterday if you didn’t tell Mr. Grimes that you were in the condition (with child, I mean) away back more than a year before the time you stated in your testimony yesterday as the time you first had sexual intercourse with Mr. Grimes. Did I ask you that question?”

The state objected to the question on the ground that she had answered it, and it would be but a repetition. The court sustained the objection. Appellant’s counsel, counsel for the state, and the court had some discussion as to whether the witness had answered the question, and each giving his or their opinion. The bill is very indefinite, but after reading the statement of facts, we are of the opinion that, if appellant had the purpose and object in view he states in the bill, he should have been permitted to ask the question and propound additional questions as to the time the first act of intercourse took place. But in this -bill he does not state he could or would have fixed the time of the first act of intercourse as occurring prior to the time she said the engagement to marry occurred, by this witness or any other witness. If the bill stated that he could have secured testimony from this witness or any other witness which would have tended to support a theory that the first act of intercourse occurred prior to the time they became engaged, it would present error; but, in the absence of any such allegation in the bill, we would not be authorized to' presume that such testimony could' or would be elicited. While the young lady appears to have been mixed in giving the year, saying 1909 and 1910, where the record discloses as a whole that the events testified about occurred in 1910 and 1911, this is not surprising, as appellant had been gone for three years. However, when the time was fixed that she appeared before the grand jury, made the trip to Houston, where her baby was born, she was definite as to the time occurring prior to those events when all the matters occurred; and her testimony, as a whole, shows conclusively that, taking these facts into consideration, she fixed the time definitely when the first act of intercourse occurred some time after they had become engaged, and, if her testimony is to believed, she yielded to his persuasions because she believed the engagement would be shortly merged into the marriage relation, and she was led into such belief by the representations of appellant.

As we think the testimony will sustain the conviction, we, of course, are of the opinion the court did not err in refusing to give peremptory instructions to acquit, and in overruling his demurrer to the evidence. The court instructed the jury:

“By the term ‘seduction,’ as used in this charge, is meant to lead an unmarried female away from the path of virtue.
“Before a conviction can be had in this case, you must believe from the evidence, beyond a reasonable doubt, the' four following propositions :
“(a) That the defendant had sexual intercourse with Rebecca Stripling in Nacogdoches county, Tex., at some time within three years before the date of the filing of the indictment in this case.
“(b) That the said Rebecca Stripling consented to said act of intercourse, if any, upon the sole ground of a promise of marriage made to her by the defendant, W. U. Grimes, at the time or before said act of intercourse, if any, and that such act of intercourse was not indulged in by the said Rebecca Stripling, if it was, on account of desire on her part, lust, passion, or other consideration than a promise of marriage.
“(c) That at the time of such sexual intercourse, if any, the said Rebecca Stripling was under the age of 26 years.
“(d) That at the time of the said act of intercourse with the said W. D. Grimes, if there was such, she (the said Rebecca Stripling) was-a virtuous female; that is, that she had never had sexual intercourse with any man up to said time.
“If you do not find, beyond a reasonable doubt, each and every one of the above four propositions to be established by the evidence, you will return a verdict of not guilty in this case, as the state must establish, not only one, but all of said four propositions, beyond a reasonable doubt, before a conviction can be had in this case.
“A conviction cannot be had upon the testimony of an accomplice alone. You are instructed that the witness Rebecca Stripling is an accomplice. Now, you cannot convict the defendant upon her testimony alone, unless you first believe that her testimony is true and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony, unless you further believe that there is other testimony in the case corroborative of the accomplice’s testimony, tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged.”

This charge on accomplice testimony was specially laid down and approved by this court in a case of seduction. Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583; Slaughter v. State, 174 S. W. 580 (recently decided but not yet officially reported), and authorities cited.

The court having instructed the jury as he did, it was not error to refuse the special charges requested on this issue, and, as the main charge of the court presented every theory of the ease, there was no necessity to give any of the special charges requested.

There was no proof offered in regard to the allegation in the motion for a new trial alleging misconduct of the jury. No affidavits in support of such allegation are appended to the motion, and, if any evidence was offered on the hearing of the motion, it is not in the record. The court in his order overruling the motion says “he heard the evidence submitted thereon,” and appellant, if he expected us to review that ground of the motion, should, in a proper bill of exceptions, have included that testimony in the record.

The judgment is affirmed.

On Motion for Rehearing.

PRENDER,GAST, P. J.

Appellant presents again as grounds for rehearing and reversal several of those presented in the original submission. We have again reviewed the record and reconsidered these grounds. They were all correctly disposed of in the original opinion. However, he has filed a brief on only some of these questions, earnestly contending that the court was wrong in affirming the judgment, and still insists that, on these grounds urged, the judgment should be reversed. We have carefully considered his brief and argument on them. But will further review those thus presented.

In his first he again urges that the court committed reversible error in overruling his application for a continuance. This was sufficiently stated in the original opinion. His bill on this subject is based on the absence of Mrs. Stone and Mrs. Scott only. Therein he does not give either the whole or the substance of his motion for a continuance, nor does he refer to nor make the application a part of his bill. However, the original motion is in the record, and in passing upon the question, we considered it, although irregular. We do so again now. It shows that it was made on account of the absence of 23 witnesses, including said 2. It further shows that the testimony of a large number of the others was very material to Mm and would' in fact have presented a complete defense, if they would testify what he said in his application they would. The record further discloses that the attendance of most, if not all, of these other witnesses, was secured pending the trial, but that he failed to introduce a single one of them. His application further shows that he expected to prove by Mrs. Medford that the prosecuting witness, in talking over her misconduct with defendant, told her mother, in her presence, that she had been carrying on such conduct for more than four years before that time, and “by the witnesses Mrs. Stone and Mrs. Scott defendant expects to prove substantially the same facts as set up as to the witness Mrs. Med-ford” ; that each of these witnesses had been subpoenaed; that “Mrs. Stone is sick and unable to attend court, as is shown by certificate of Dr. Barnum, marked Exhibit I, and by Dr. Tucker, marked ExMbit J; that Mr. Medford says his wife is too sick to attend court.” It will be seen by this that appellant did not purport to have any knowledge on the • subject himself, but depended solely upon the certificates of said doctors as to Mrs. Stone’s illness. The certificates of said doctors are not attached to said motion, nor do they anywhere appear in the record. It will be seen also that neither motion nor record elsewhere discloses why Mrs. Scott was absent. The record also discloses that no process whatever was afterwards issued for Mrs. Scott, nor any of the others as to that matter. The state says they lived in four or five miles of the courthouse. The trial continued for a sufficient length of time, so that the slightest diligence for process would have doubtless secured the attendance of Mrs. Scott in time to have testified. It is shown that Mrs. Medford’s attendance was procured during the trial, and that appellant did not introduce her as a witness at all. For aught that this record shows, the certificates of the doctors were wholly insufficient to show that Mrs. Stone was unable to attend court by reason of sickness. They may have shown to the trial judge the reverse of this. The trial seems to have been concluded on September 23, 1914. Appellant’s amended motion for new trial was not filed until October 17, 1914, and acted upon three days later by the court. No affidavit of Mrs. Scott nor of Mrs. Stone was filed showing that they or either of them would testify as claimed by appellant. Under all the circumstances, this was material, if for no other purpose, to show appellant’s good faith in attempting to secure a continuance on account of their absence. Not having had Mrs. Medford to testify at all after her attendance was secured, and no affidavit of the others being attached showing that they would testify as claimed by appellant, clearly from this and ail the other facts the trial judge could properly conclude, as he doubtless did, that neither of the absent witnesses would have testified as claimed by appellant.

In Mitchell v. State, 36 Tex. Cr. R. 300, 33 S. W. 367, 36 S. W. 456, this court, through Judge Hurt, said:

“Moreover, we would remark, as to the Harris county witnesses, that one of them, to wit, Chancery, by whom, according to appellant’s application, testimony of a more material character for appellant could be elicited than by either of the other witnesses — that, before the beginning of the argument in the case, said witness * * * was produced and brought into court, and no effort was made on the part of the appellant to avail himself of his testimony. If the appellant failed to avail himself of the best witness he had, according to his affidavit, when it was within his power to produce them before the jury, we cannot reasonably presume that he would have used the other witnesses had they been present.”

See, also, Blain v. State, 34 Tex. Cr. R. 452, 31 S. W. 368; Treadway v. State, 144 S. W. 659.

Under no circumstances does the overruling of appellant’s motion for continuance show any reversible error.

Appellant next urges that the trial judge committed reversible error in the colloquy which occurred between appellant’s attorney, the state’s attorney, and the trial judge, when he asked the state’s witness, Miss Stripling, if she was capable of experiencing sexual desire the first time she had sexual relations with defendant, and the colloquy which occurred the next day after Miss Stripling had testified and the state had closed its case when he asked her again the same question he had asked her before in his cross-examination. We think these matters were sufficiently stated and correctly decided in the original opinion. Appellant now urges both and discusses them together, and, as we understand, practically bases his whole contention on his claim that what the judge said at the time was a comment by the judge on the weight of the evidence, and cites several authorities showing that, where this is the ease and is prejudicial, it presents error. The legal proposition he asserts is a correct one, but its application to this case is quite a different thing.

What we said in the original opinion we think disposes correctly of this first question as to whether or not the prosecuting witness was capable of experiencing the sexual desire, etc., and there is no necessity to further discuss that. As to the second question as to appellant asking the prosecuting witness whether he asked her the same question the day before, we will state this matter a little more fully. In allowing appellant’s bill on the subject, the judge said he approved it with reference to the statement of facts, and particularly all testimony contained therein on this point. Hence we go to the statement of facts. It shows that the state introduced the alleged seduced girl, Miss Rebecca Stripling, as its first witness. Her direct testimony, outside of proving up a large number of letters written to her by appellant, was not lengthy. The cross-examination by appellant shows to have been quite extensive and searching. On this subject it shows that the appellant had her to testify that she wrote some letters to him. Then he asked her if in one of these she did not tell him that she was pregnant “away back one. year before this occurred, about?” The state objected to proving the contents of the letter, claiming the letter was the best evidence. The court sustained that objection. Then the statement of facts shows that this occurred (S. E. pp. 23, 24):

“Q. I will ask you if you didn’t have a conversation with Mr. Grimes in which you told him you were in that condition more than one year before, and try to get Mr. Grimes to marry you, more than a year before you were in that condition, actually? A. Say I wrote him a letter saying that? Q. No, ma’am; X asked you that a while ago, and the court said you couldn’t answer it. Now, X am asking you this question: I asked you if you didn’t have a conversation with Mr. Grimes in which you told him that you were in that condition and wanted him to marry you more than a year before you wore actually in that condition? A. No, sir; I did not.”

Some time the next day after the state had concluded its evidence and rested, the appellant called Miss Stripling back to the stand for further cross-examination, as he .stated. After asking her about other matters, this occurred (S. E. p. 142):

“Q. Now, I am not sure, but I believe I asked you the question yesterday if you didn’t tell Mr. Grimes that you were in the condition (with child I mean) away back more than a year before the time you stated in your testimony yesterday as the time that you first had sexual intercourse with Mr. Grimes. Did I ask you that question yesterday? State: We object to it. She has answered the question. Court: Tes; she was asked that yesterday, and she said she didn’t tell him. Defendant: Then, I want to ask the question again. State: We object to that, for it is just repetition, if the court please. Court: Yes, I am sure she answered the question, Judge. Defendant: I want to ask the question again, if the court please, for I am sure she didn’t answer it like the court says she did. Court: The objection will be sustained. There is no question but what she answered it yesterday. You asked her the question, and she answered it. Defendant: We except to the ruling of the court. We were studying about that last night, and my recollection is that she answered to the contrary to what the court understood. State: She answered positively that she did not. Court: I think she did. You can have the benefit of it, Judge, and the objection will be sustained. Defendant: We except to the ruling of the court.”

This vtas not and cannot be construed to be a discussion or comment upon the weight of the evidence by the trial judge. It shows simply that when appellant sought to ask the witness again, in substance, if not precisely, thel same question he had asked and she had answered the day before, the state objected because it was a repetition. The appellant claimed, not that he had not aske'd the same question in substance the day before, but that she had not answered as the court and state said she had. As the objection to the question was made, it was necessary for the court to act upon the objection. He did so by stating what was a literal fact that she had answered the question and in the way the court stated she had. This was no comment whatever by the court on her testimony or the weight of it. In no way did it indicate to the jury whether the judge believed or disbelieved what the witness had testified. In no way did it indicate whether it was material or immaterial or had any bearing on the case. He merely stated what the witness had testified. In quoting from the testimony above, it is shown that the judge was exactly and literally true in his statement. Even if it could be construed as on the weight of the evidence, what was said by this court by Judge Davidson in Newman v. State, 64 S. W. 259, is applicable. After citing article 787, C. C. P., he said:

“Construing this article, it has been held that remarks of the court as to nature and weight of evidence will not be ground for reversal, where the character of the testimony and its materiality to the case is not shown, and it is not made to appear that probable injury was done by the remarks. Stayton v. State, 32 Tex. Cr. R. 33, 22 S. W. 38; Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534; Thompson v. State, 35 Tex. Cr. R. 352, 33 S. W. 871; White’s Ann. Code Cr. Proc. §§ 945, 946, for collation of authorities.”

The trial court must necessarily have a large discretion in refusing to permit the asking of a witness over and over the same question. This record shows, as stated, that this witness was asked this question specifically, and specifically answered it, as the court said' she did when appellant the next day attempted to ask her precisely, in substance, the same question. If the court had no such discretion, then there would practically be no termination to the examination and reexamination of every witness on every question over and over again. We think, under the circumstances of this case, the court properly exercised his discretion, and what the judge said presented no error that would authorize a reversal.

The appellant again urges that the lower court erred in refusing to give his special charge No. 5, shown by his bill No. 13. Appellant claims that we did not dispose of this matter in the original opinion. We think we clearly did so; for on the point we quoted the charge of the court¡ and then stated:

“The court having instructed the jury as he did, it was not error to refuse the special charges requested on this issue, and, as the main charge of the court presented every theory of the case, there was no necessity to give any of the special charges requested.”

However, as appellant again presses the point, we will further discuss it.

The state, in the original submission of the case, urged that neither appellant’s said requested charge No. 5, nor his bill to the refusal of the court to give it, in any manner explained when it was presented to the court for its action, and claimed that, under the statute and the uniform decisions, this court could not consider the question. The state’s contention wás true, for neither the requested charge nor the bill to its refusal states when it was presented to the court for his action nor when he acted thereon. This was necessary under the uniform construction of the statute. Ross v. State, 170 S. W. 306. This alone would be a complete answer to appellant’s assignment of error on this point. However, in the original opinion we treated the matter as if the charge or bill showed that it had been presented to the judge and acted upon by him at the proper time. This requested charge is to this effect: That if Rebecca Stripling permitted defendant to have sexual intercourse with her for any other reason than a promise previously made by him to her to marry her, and that she in good faith relied on such promise, and for that reason alone permitted him to have sexual intercourse with her, or if she permitted such intercourse partly on such promise of marriage and partly to satisfy her own lust or sexual desire, or if she permitted it partly on account of faithfully relying on his promise to marry her and partly because he told her he would protect her and would use a rubber shield, to acquit him. We think the court properly refused this charge, if for no other reason, because it was based on questions not raised by the evidence, and they were all coupled up together, so that the charge should not have been given. It is the settled law. of this state that, wherever the charge of the court submits in a proper way the questions raised by the evidence, he should refuse special charges presenting the same thing or substantially the same thing. Sections 834, 835, White Ann. O. G. P. As stated, we copied only part of the court’s charge, but, even in the part of it quoted, it is shown that the court told the jury in plain, unequivocal language that, before a conviction could be had, they must believe from the evidence, beyond a reasonable doubt, four things, enumerating them. By one (b) that Rebecca Stripling consented to said act of intercourse, if any, upon the sole ground of a promise of marriage made to her by the defendant at the time or before the act of intercourse, if any, and that such act of intercourse was not indulged in by her on account of a desire on her pari, lust, passion, or other causes than a promise of marriage. And then told the jury:

“ (6) If you do not find, beyond a reasonable doubt, each and every one of the above four propositions to be established by the evidence, you will return a verdict of not guilty, as the state must establish, not only one, but all of said four propositions, beyond a reasonable doubt, before a conviction can be had.”

And in a separate paragraph submitted the ease to the jury for an affirmative finding, telling them that if they believed from the evidence, beyond a reasonable doubt, that defendant did, about the time charged in the indictment, seduce Rebecca Stripling, etc., and have carnal knowledge of her, etc., to convict him and assess his penalty. And further told the jury that they were the sole and exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony. We state again that, as the court in the main charge presented every theory of the case, it was not error to refuse to give said special charge.

It is not necessary to give a full statement of the evidence. The state’s evidence, and especially of the seduced girl, properly corroborated, as it was, was amply sufficient to establish appellant’s guilt and authorize the jury to convict him. The fact, if it be a fact, that Miss Stripling was indefinite or uncertain as to dates or contradicted herself would be no ground for this court to disturb the verdict. Her veracity and accuracy was for the lower court and jury, not this court. The jury saw and heard her and her manner of testifying and the examination and cross-examination of her, and the argument of the respective attorneys, especially that of appellant showing her contradictions and seeking to have the jury to disbelieve her. Doubtless it was all presented by appellant’s able attorney, and perhaps answered by the state’s attorney. At any rate, it was for the jury and the lower court, and they believed the testimony, which they had the right to do. Kearse v. State, 68 Tex. Cr. R. 633, 151 S. W. 827.

The motion is overruled.

DAYIDSON, J,

dissents.

DAVIDSON, J. I have been unable to agree with my Brethren in the affirmance of this case, and in stating my reasons shall not discuss the majority opinion, but treat the case from my understanding of the record.

The alleged seduced woman was Miss Rebecca Stripling. Her testimony shows the engagement between herself and appellant occurred in June or July, 1909, and he continued to wait on her “for three or four months." She says:

“When we became engaged to be married some time in June or July, 1909, the time for the marriage was for some time during Christmas. That was the following Christmas from then. We didn’t get married at that time. * * * Mr. Grimes, the defendant; did have sexual intercourse with me. I don’t remember exactly the first time that he ever had intercourse with me. I suppose it was about six weeks before the time we were to be married in Christmas. * * * He had intercourse with me the same year that we had become engaged. It was not the year following the engagement that we had the intercourse the first time. He promised that we would marry, and that he would shield me from having anybody to Imow it,- * * * After this act of intercourse took place, something finally became wrong with me as a result of it. I informed the defendant that I was in that condition. I then requested him to make good his promise of marriage to me. When I did that he made some other promise; I don’t hardly know what it was. lie promised me he would see me through. * * * I cannot remember just the last time I saw him before he left, but I think it was some time the last of January, or some time in February; I don’t remember. That was in 1910. Q. 1910' or 1911? A. 1910. * * * I gave birth to a child. I gave birth to the child in 1910. It was m 1910. It was on the 7th day of May, 1910. It wasn’t May of this year, but 1910. That child wasn’t born this year. * * * I have testified here that I gave birth to a child, and that is right. I have also testified that it was Mr. Grimes’ child. I have also testified that I gave birth to that child in Houston. I don’t know where that child is now. The last time that I ever heard of that child it was still in Houston. I haven’t done anything to find out about it since. I never did see the child. I don’t know how long it was after Dennis Grimes had carnal knowledge with me before that child was born; I suppose about one year, or something like that. I know the first time that Dennis Grimes ever had sexual intercourse with me. As to the day of the week that he first had intercourse with me, it was on Sunday. It was in the daytime. I don’t remember just when that was. I don’t remember just exactly when it was. I had never had sexual intercourse with anybody before. But I can’t give the day or the month that I first had sexual intercourse with a man. I can’t give the day nor the month. As to the yeax-, I think it was some time in 1909, as well as I remember. It was in the winter. _ I am sure it was in the winter. The first time I ever had intercourse was with Dennis Grimes, and it was in the winter of 1909. I wouldn’t attempt to tell the jury what month it was in. When we first had intercourse we were somewhere on the road out in the country somewhere; I don’t remember just where now. I don’t remember just where it was. * * * I didn’t yield to him because I had any desire whatever for sexual relation. I suppose this relation existed between the defendant and me after the first time for about six weeks or two months, something like that. After the first time he had sexual intercourse with me, I think he continued to have such relation with me for about two months, something like that. From the beginning of the time that he had sexual intercourse with me up to the last time he had such relation with me, I am sure was within a space of two months. I don’t think it would be any more than two months. I have said that the first act of intei’course took place in 1909. I haven’t said it was in December, 1909, and it wasn’t in December. I said it was in the winter time. The first act of intercourse I ever had with the defendant was in the winter time, some time in the winter time, * * * At the very first time that the defendant Dennis Grimes had sexual intercourse with me, as to whether or not he made an entrance, I suppose he did. I say I suppose he did, because I don’t know whether he did or not. I don’t know whether he made an entrance or not. I didn’t become enceinte the first time he had intercourse with me. I know that I didn’t become pregnant the first time he had sexual intercourse with me. As to whether or not there was anything said between Dennis Grimes and me the first time he had intercourse, about a rubber shield, I remember he said something about it; something about a rubber shield to protect me; but I don’t know what it was he said, though. I said something about it, too. I surely said something about it. As to whether or not he used such a thing, I know he said he used it, and that is all I know about it. I didn’t see it. I didn’t have my hands on it. He did not continue to use those rubber shields all of the time. He used them part of the time, but he didn’t use them all of the time. I have not made any inquiry at all about my child since it was born.”

She swears positively as to the engagement in June or July, 1909, and that some time in the following winter of 1909 (not in December) he had the first act of intercourse with her, and about six weeks before Christmas 1909, and this continued for six weeks or two months, and that her child was born on the 7th of May, 1910. Her testimony was not shaken upon this idea. She further testified that she went to Etouston in company with Dr. Shadden, of San Augustine; she and her family living in Nacogdoches county. Accompanying her and Dr. Shadden was her relative, Sam Stripling. Dr. Shadden was not the family physician, and lived in a different county. He testified: That he went with the girl and her relative to Houston. That he did not know whether she was pregnant or not, except what she stated. That he made no examination of her, but he went with her to a maternity home in Houston and returned to San Augustine. It was at this maternity home or rescue home that she says the child was born. That she had never heard of it since, and has made no inquiry about it. There was some question also raised as to the age of the prosecutrix. She testified she was born on 3d of December, 1885. Her mother, and perhaps her father, first testified she was born on 3d of December, 1883. Then said they were mistaken; that it was the 3d of December, 1885. If she was born in December, 1883, she was over 25 years of age. If she was born in December, 1885, she was just under 24 years of age at the time she says she was seduced in the winter of 1909. Why Dr. Shadden was selected to go with her to Houston and the purpose of that is not explained, but stated as a fact. Nobody, except herself, testified with reference to the birth of the child. Her mother testified that she suspected her pregnancy, which the girl at first denied, but finally admitted, and it was after this conversation that she went to Houston. There is no evidence in the record as to the birth of the child in Houston outside of that of the prosecutrix. There is testimony to the effect that this trip to Houston was in 1911 instead of 1910. Dr. Shadden so testified. Upon this point the testimony of the prosecutrix and that of the other witnesses is sharply at issue. She testified that the child was bom in May, 1910, and not 1911, and adhered to it, and never changed her testimony through all the examinations and cross-examinations. There was a witness used who testified that he carried appellant out of Nacogdoches county in a buggy to some railroad point a few miles away in another county. This witness testified, while en route, he (appellant) said he was leaving because they were trying to get him in trouble about this girl, and that he had heard that she had trouble with some man, or perhaps was pregnant, or words to that effect, but he had nothing to do with it and was not responsible for it, but was leaving until the thing blew over.

There were numerous letters introduced, which the girl testified were written her by appellant. The verity of those letters or their genuineness depended upon her testimony. Some of them contained expressions of endearment and love and matters of that sort, but none of them referred to anything in the slightest way dishonorable. There is a considerable amount of testimony to the effect that other young men went with her, whose names are all mentioned, and one lived on the place who left. He was attentive to the prosecutrix also. She admits all this in her testimony. But her testimony indicates that appellant went with her more than any one of the others. This may be a sufficient statement of the facts for what I desire to write.

It is contended this evidence is not sufficient. This contention I believe should have been sustained. Her evidence makes it certain that her intercourse with appellant hap-ened in the winter of 1909, after the engagement in the previous June or July, and that her child was born on the following 7th of May, 1910. If he was engaged to her in June or July and did not have intercourse with her until the winter of 1909, or even before the month of December, 1909, as she says it did not occur that month, the child being born on' the 7th of May, this would preclude the idea that it was the offspring of appellant. If the intercourse occurred about six weeks before Christmas, 1909, as her testimony would indicate, it is evident that some other party had had intercourse with her prior to that time and was the father of her child. From that viewpoint, this could not be a case of seduction. If the child was born on the 7th of May, 1911, then, as a matter of course, it was not appellant’s child, because he ceased to have intercourse with her in the winter of 1909, and the girl swears positively he only had intercourse with her for about two months, when that relation ceased between them, and that was in the winter of 1909. So it would make no difference from any viewpoint of her testimony. The child could not be that of appellant, and she swears positively that appellant was the father of her child, and says he was the only man who had intercourse with her. The state undertook to shake her testimony and show it was not in the winter time but prior to that that the intercourse occurred, but she declined positively to make such statement, and swore it was in the winter time, and that her child was born on the 7th day of May, 1910. So as I understand this record, accepting her testimony as true in every respect, except as to the year, that she was mistaken as to the time of the engagement, and that it was 1910 instead of 1909, though she states emphatically it was 1909, from that viewpoint this case is unexplainable upon any hypothesis that would lead to the crime of seduction on the part of appellant; but if we look at the facts from the standpoint of the prosecutrix and the prosecution, and her statement of the time of the engagement, and the time she repeatedly says was the time of the first act of sexual intercourse, and the time that her child was born, still appellant would not be guilty of the crime of seduction from, the state’s own testimony, as detailed by this girl. If she was engaged to appellant, as she states, in June or July, before the child was born the following 7th of May, and that she had intercourse with him the first time in the winter time, whether it was in the winter time of 1909 or 1910, and the child was born the following 7th of May, whether 1910 or 1911, appellant would not be the author of her shame and could not be. Some other man had a hand in the business. She could not be engaged any year in June or July and only have intercourse for the first time the following winter and her child be born on the following 7th of May. This would not make a crime of seduction against appellant. She had been previously intimate with some other party, if her testimony is true. Some other man was the father of that child. This would be so in any case, except seduction, if the laws of nature mean anything. I do not believe that the laws of nature were suspended with reference to this case. It is said that gestation is freaky with reference to the first child, but this case will hardly come within any such peculiarity.

There is a bill of exceptions in this record that in my opinion requires a reversal of the judgment. The matter is made a little prolix by reason of the qualification of the judge. This bill recites the prosecutrix was recalled to the witness stand by the defendant for the purpose of fixing a date and perhaps laying the predicate for impeachment, either or both. She was asked this question:

“ ‘Now, I am not sure, but I believe I asked you the question yesterday, if' you didn’t tell Mr. Grimes that you were in the condition (with child, I mean) away back more than a year before the time you stated in your testimony yesterday as the time you first had sexual intercourse with Mr. Grimes. Did I ask you that question?’ ¡State’s counsel replied: ‘We object to it. She answered the question.’ The court replied: ‘Yes; she was asked that question yesterday, and she said she didn’t tell him.’ Defendant’s counsel then said:* ‘Then, I want to ask the question again.’ State: ‘We object to that, for it is just repetition, if the court please.’ Court: ‘Yes; I am sure she answered the question, Judge.’ Defendant: ‘I want to ask the question again, if the court please, for I am sure she didn’t answer it like the court says she did.’ Court: ‘The objection will be sustained. There is no question but what she answered, it yesterday. You asked her the question, and she answered it.’ Defendant: ‘We excepted to the ruling of the court. We were studying about that last night, and my recollection is she answered to the contrary to what the court understood.’ State: ‘She answered positively she did not.’ Court: T think she did. You can have the benefit of it, Judge, and the objection will be sustained.’ On the previous day prosecutrix was asked the following question, on this same line, and gave the following answers: ‘Q. I will ask you if you didn’t have a conversation with Mr. Grimes, in which you told him that you were in that condition, more than a year before, and try to get Mr. Grimes to marry you, more than a year before you were in that condition actually? A. Say I wrote him a letter saying that? Q. No, ma’am; I asked you that a while ago, and the court said you couldn’t answer it. Now, I am asking you this question: I asked you if you didn’t have a conversation with Mr. Grimes, in which you told him that you were in that condition and wanted him to marry you, more than a year before you were actually in that condition? A. No, sir; I did not. Q. Do you remember about telling him that you were walking to Melrose, or did walk to Melrose instead of riding, thinking that perhaps it would bring back your natural monthly period? A. Why, I walked over there one day, but I did not go for that purpose. Q. I asked you if you didn’t remember telling him that you did, and for that purpose? A. Tes; I do remember that; yes, sir. Q. Now, do you remember when that was? A. No, sir. Q. Now, you did tell him, though, that you were in that condition at that time, and that he ought to marry you? A. Why, sure I told him that. Q. And, whenever that was, these things did, take place, and you told him that? A. Tes, sir; I did.’ ”

The bill is very lengthy, and the court signs the bill with this statement:

“This bill of exceptions is approved by reference to the statement of facts in this case, and particularly all testimony contained on these points.”

Now, referring to the statement of facts, as the trial judge says must be done, on this question, I find it in this condition:

“Now, you wrote Mr. Grimes one letter, in which you told him that you were in that condition, away back one year before this occurred, about? State: We object, the letter would be the best evidence. Court: Tes, I think you would have to show about the letter — account for it. Defendant: Tes, sir; all right, we except to the ruling of the court. Q. I will ask yon if you didn’t have a conversation with Mr. Grimes in which you told him you were in that condition more than one year before, and try to get Mr. Grimes to marry you, more than a year before you were in that condition, actually? A. Say I wrote him a letter saying that? Q. No, ma’am; I asked you that a while ago, and the court said you couldn’t answer it. Now, X am asking you this question: X asked you if you didn’t have a conversation with Mr. Grimes in which you told him that you were in that condition and wanted him to marry you more than a year before you were actually in that condition? A. No, sir; I did not. Q. Do you remember about telling him that you were walking to Melrose, or did walk to Melrose instead of riding, thinking that perhaps it would bring back your natural monthly period? A. Why, I walked over there one day, but I didn’t go for that purpose. Q. I asked you if you didn’t remember telling him that you did and for that purpose? A. Tes; I do remember that; yes, sir. Q. Now, do you remember when that was? A. No, sir. Q. Now, you did tell him, though, that you were in that condition at that time and that he ought to marry you? A. Why, sure I told him that. Q. And, whenever that was, these things did take place, and you told him that? A. Tes, sir; I did.”

These statements are copied from the bill of exceptions and statement of facts, to which the trial court referred. This makes it evident the court would not permit the defendant to prove that the girl had written the letter inquired about. I think he ought to have been permitted to prove that, but when the court ruled that out, appellant then sought to prove that more than a year before her engagement or intercourse she had a conversation with appellant in which she told him of her condition, and wanted him to marry her; but she replied, “No;” she did not have such a conversation. But following this she did admit and state she went to Melrose and walked, but not for the purpose of bringing on her monthly period, but she did walk over there, and that she told appellant about her condition, and wanted him to marry her. She says, “Why, sure I told him thatand that these matters occurred between them. Now, from reading this statement of facts, the ordinary mind would reach the conclusion that it left the date of that conversation in doubt. She first denied that she had had a conversation with appellant about a year before, but upon further examination she admitted she had such conversation with him, and that she had walked to Melrose. She was called back to the witness stand to fix that date. The court, before the jury, refused, not only to let appellant fix a date, which he had a right to do, it being one of the most important questions in the case, but informed the jury that she had denied the whole thing; therefore not only refusing to let him fix the date, but stated himself that the witness had denied the whole thing. If this is not an expression on the part of the court as to what the testimony of this witness was, and against the facts to which he refers, then the writer does not understand this record. She admitted and testified, as shown by the bill of exceptions and by the statement of facts, that she had such a conversation with appellant, and all through the questions and answers the intimation and indication is that it occurred long prior to the time that she states the engagement or intercourse occurred. The court’s statement in the presence of the jury, and in answer to defendant, refusing to let him go into these questions, that she had denied the whole thing, and would not let the matter be investigated both as to the conversation as to the date of it, was unauthorized. The writer does not understand that there could be a much more important question in this case. If the witness would have located that conversation, as this record would seem to indicate, as being prior to the time of the engagement, as she was then charging him with having had intercourse with her, from which she was pregnant, and asking him then to marry her out of it, it would be the most important and cogent testimony. That, if true, would show beyond any question that the illicit relations between them had occurred long prior to the engagement in 1909. If the illicit relations were then existant, and she thought she was pregnant, and she was trying to induce him to marry her, whether pregnant or not, it would indicate and show to the jury that this illicit relation existed without any reference to the subsequent promise of marriage. I can imagine no more important fact in the case than this particular fact, especially under the circumstances shown by this record. Not only that, but the statute prohibits the judge from giving his views of the testimony, or his statement about it, or comment on the weight of it. The statute prohibits the trial judge from making such comments. The record shows she made the statements with some doubt as to the date of the conversation, and the court used the first answer and stated she did not make such statement, when later she did, and refused appellant the right to investigate the matter and fix the date. This, it occurs to me, is an error of the most serious nature. If the girl had as anticipated, and as this record indicates, testified that this conversation occurred prior to her engagement in June or July, 1909, which she stated as a fact, this case of seduction would have passed out. Under such conditions, it could not be seduction. An unchaste woman cannot be seduced, and, if appellant had had intercourse with her prior to the engagement, that engagement did not and could not make it a case of seduction, although he may have subsequently had intercourse with her. If the trial judge wanted to testify about this matter, he should have taken the witness stand, to sustain her as he understood, and not announced the fact as judge from the bench without permitting the examination of the witness as to the condition of things. He was not the witness. The woman was the witness.

There is another matter that, in my judgment, shows error. Prosecutrix was asked by appellant on cross-examination if she had ever had sexual relation with any man, except defendant, to which she replied she had not; that on the occasion of their first act of intercourse they got out of the buggy and went some 30 or 40 steps into the brush, and there had the intercourse. Appellant’s counsel then asked this question: “Did you have any sexual desire?” The state objected. Defendant’s counsel then asked this question: “Did you have any sexual desire for him (the defendant) ?” This was objected to, and the objections were sustained. This all happened on cross-examination and was legitimate, and should have been permitted. The sexual intercourse matter was a serious one in the case, of course, and without which there could be no seduction, and the relation of the parties and her mental and physical condition at the time were important matters. She testified that he agreed to protect her from any consequences of the act, and would use a rubber shield, so as to insure that protection: Now on cross-examination he should have been permitted to show whether it was a cold-blooded affair or whether she was in love with the man or had any idea of sexual intercourse with him, so far as passion was concerned. It did enter into this case, and was the subject of legitimate examination. This may not have been a very serious matter, but still it should have been permitted. In support of the proposition that the court was in error in his remarks to the jury and in refusing to let appellant fix the date of that prior conversation, a great number of authorities might be cited, but it seems to me it is so well known to the profession and so well settled in the jurisprudence of the state that it is unnecessary to cite them.

There are other matters in the case that I might refer to, but I do not ca.re to extend this matter further. This case ought to have been reversed and appellant awarded another trial.

For the reasons indicated, I withhold my assent to the affirmance of this judgment.
      <2&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^>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:
    BOLDEN v. STATE.
    (No. 3664.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Witnesses «=>318 — Corroboration.
    In a prosecution for murder, where the defendant testified without contradiction that he went to deceased’s store to get his mail because he expected a letter from his mother, who was sick elsewhere, defendant’s statements to others of his purpose in going to the store were not admissible to support his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. «=>318.]
    2. Homicide «=>156 — Evidence—Intent.
    In a prosecution for murder, where the state did not dispute that accused went to deceased’s store only to get his mail, and that an unpremeditated quarrel then arose between the deceased and accused, the exclusion of evidence that accused had stated he was going down to deceased’s store to get his mail, offered to show that there was no premeditation, was proper. '
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 286, 287; Dec. Dig. «=>156.]
    3. Witnesses «=>393 — Impeachment — Foe-meb Testimony.
    In a prosecution for murder, where it was sought to impeach the defendant’s witnesses as to material facts and incidents at the time of the homicide by proof that he gave no such testimony at the inquest and on a former trial, such impeaching testimony was not inadmissible because the defendant was not present at the coroner’s inquest, since, where one seeks to impeach a witness by proof of former statements inconsistent with his evidence, it is immaterial whether the defendant was present or not.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. «=>393.]
    4. Criminal Law «=>1092 — Appeal—Bill of Exceptions — Authentication—Necessity.
    Where the court declined to sign a bill of exceptions to remarks of the prosecuting attorney, accused must resort to the other means of establishing the facts provided by statute if the remarks are to be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig.- §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. «=>1092.]

      5. Criminal Law <®=»1144^-Ai>pbai>-Prb-sumptions — Argument op Counsel — Objections.
    In a prosecution for murder, where accused took a bill of exception in advance to anything and everything that a special prosecuting attorney might say in his closing argument, which was not supported by the record or was of an inflammatory nature, or injurious to accused, it was incumbent upon accused at the close of the argument to point out those portions of the speech to which he objected, and therefore, on appeal, the court would conclude that the only portions of the argument not acceptable to the defendant were those as to which he presented special charges requesting the court to instruct not to consider such portions of the address.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ?§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. <@= 1144.]
    6. Criminal Law <©=>720 — Trial—Propriety op State’s Argument.
    In a prosecution for murder, where there was evidence as to the character of the wound made by defendant’s knife, its depth, and that it penetrated the chest cavity, the state’s counsel was authorized to argue as to the probable length of the blade of defendant’s knife, despite defendant’s contradictory testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. <S=> 720.]
    7. Criminal Law <@=>713 — Trial—Propriety op State’s Argument.
    In a prosecution for murder, where state’s counsel was arguing the question that the mode and use of a weapon must always be considered in passing on whether it is a deadly weapon, and whether death was intended, and stated that, if a pistol were thrown at a man, and not fired, it would not necessarily be a deadly weapon, the argument was legitimate.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1663, 1678; Dec. Dig. <@=> 713.]
    8. Criminal Law <@=>724 — Triai>-Propriety op State’s Argument.
    In a prosecution for murder, the argument of state’s counsel referring to defendant as a culprit was not improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1679; Dec. Dig. <@=>724.]
    9. Criminal Law <@=>1043 — Appeal and Error-Necessity op Objection Below — Argument op Counsel.
    In a prosecution for murder, where the record necessarily disclosed that the defendant left deceased’s wife a widow and his children orphans, the defendant Should have specifically pointed out the objectionable part of state’s counsel’s argument referring to the widow being-made such, and the children being made orphans by defendant, if he expected the court of appeals to review the speech.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. <@=> 1043.]
    10. Homicide <@=>45 — Murder—Provocation —Statute.
    Under Pen. Code 1911, art. 1131, providing that insulting words or gestures are not adequate cause to reduce a homicide to manslaughter, in a prosecution for murder, where the defense was self-defense, and the state’s case was that defendant killed deceased because he refused to deliver to him his mail, that both cursed each other, and that, when deceased called defendant a black son of a bitch, defendant inflicted a fatal knife wound in his breast, the refusal of defendant’s special instructions that the evidence was insufficient to authorize a conviction for murder was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 69; Dec. Dig. <@=>45.]
    11. Criminal Law <@=>783 — Triai>-Instruc-tions — Wording.
    Where the court, in limiting the application of testimony to the impeachment of witnesses, charged that such evidence was admitted, “not for the purpose of affecting the guilt or innocence of the defendant, but only admitted for the purpose of affecting the credibility of-the witnesses,” such instruction was properly worded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1734, 17-35, 1872-1876; Dec. Dig. <@=>783.]
    12. Homicide <@=>300 — Trial—Instructions . —Sele-Deeense.
    In a prosecution for murder, where defendant’s theory of the case was that he had called at deceased’s store for his mail, when deceased cursed and ordered him out of the house, and, when he insisted on getting his mail, picked up an ax handle and struck him over the head, injuring his ear, whereupon defendant cut deceased with a small knife without intending to kill him, an instruction that reasonable fear of death or great bodily harm will excuse one in using all necessary force to protect his life or person, that it is not necessary that there should be actual danger, provided the party acts on a reasonable apprehension of danger as it appears to him from his standpoint at the time, that the party acting under the real or apparent danger is in no way bound to retreat in order to kill his assailant, and that, if from the evidence the jury believed that defendant killed the deceased, but that at the time the deceased was making an attack bn defendant, which, from its manner and character, and defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then the jury should acquit, that, if the deceased was armed with an ax handle, and its manner of use was reasonably calculated to produce death or serious bodily harm, then the law presumed the deceased intended to murder or inflict serious injury on the defendant, that, in determining whether the defendant acted in what reasonably appeared to him to be necessary self-defense, the jury should look at the transaction from the defendant’s standpoint at the time, and consider the same in the light of the facts and circumstances as the jury should believe they appeared to the defendant at the time and not from any other standpoint, and that it was for the jury to determine from the evidence what the appearances were to the defendant, and what his standpoint was, and in what light he did, in fact, view the facts, such instruction fully covered the issue of self-defense as presented by defendant’s evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Reeves Bolden was convicted of murder, and he appeals.
    Affirmed.
    Baldwin & Baldwin, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 166 S. W. 503. Upon this trial appellant was adjudged guilty of murder, and his punishment assessed at 50 years’ confinement in the state penitentiary.

In the first bill of exceptions it is recited that Mr. J. 0. Baldwin was permitted to testify that appellant had been working for him at the time of this homicide, and that his reputation was that of a peaceable, law-abiding citizen. After so testifying, the bill states if he had been permitted to do so he would have further testified:

“ ‘That on the night of the killing Reeves Bolden was at witness’ house in the afternoon, and worked for my wife in the yard. That he left my house agreeing to come back and cook supper and wash the dishes, and I made arrangements with him to go to my farm at Cleveland, Tex., and I left that night myself on the Houston East & West Texas Railway train, which left at about 8 o’clock that night. Reeves told me that he could not go that night. He did not have time to go out to Mr. Susholtz’s store, where he got his mail, and get his mail. That he expected a letter from his mother, who was then sick in Austin, and he wanted to go by there [Susholtz’s store] and get the letter. That after he got the letter, if his mother was was not too sick, he would come up on the morning train, which left Houston at about 7 o’clock the next morning, and he would be at Cleveland the next morning. I left that night and went to Cleveland, and was not at home that night. Reeves Bolden knew I was not there.’ This testimony is offered for the purpose of showing that there was no intention on the part of Reeves to kill Morris Susholtz; that he went to Susholtz’s store that night for the purpose of getting his mail. It was also offered for the further purpose of showing that Reeves had no ill will or malice against Sus-holtz on that occasion.”

Reeves Bolden testifies, in substance, to these same facts. The state did not seek to contradict this testimony by any witness, nor to prove any contradictory statements; therefore the testimony was not admissible to support appellant’s testimony. In . the record the witnesses for both the state and defendant make it clear that, when appellant went into deceased’s store, he asked for his mail, and that the difficulty arose over deceased not at the time handing out his mail to him, if any there was at the store. As to what deceased said and appellant said on this occasion after he had asked for his mail is a disputed question, but not the fact that appellant went into the store after his mail. There was no question of express malice in the case, no evidence of a prémeditated killing, but the evidence and all the evidence shows that the homicide occurred from a quarrel then and there engendered. The state’s theory is that, when appellant asked for his mail, deceased told him he would have to wait until his wife returned; that appellant became quarrelsome and overbearing, when deceased ordered him out of the house; that further words ensued, and appellant cut and killed deceased when he had done nothing more than curse him. Appellant’s contention is that he went in to get his mail, when deceased cursed and ordered him out of the house; when he insisted on getting his mail deceased picked up an ax handle, struck him over the head, injuring his ear, when he in defense cut him with a small knife; that he did not intend to kill him, and left at once. Thus it is seen that there is no question raised in the record, but appellant’s mission to the store of deceased was to get his mail, and there was no effort to show a premeditated killing; in fact, the killing having occurred when the old statute was in force, the court only submitted murder upon implied malice. Under such circumstances there was no error in the ruling of the court. If the state had endeavored to show a murder upon express malice — a premeditated killing — a different question might be presented as to the admissibility of this testimony, and it will be found in those cases where such testimony has been held to be admissible is where the state was endeavoring to show a preconceived murder, or it was admitted to support appellant when t2e state had sought to impeach his testimony.

The next four bills relate to the cross-examination of the defendant’s witnesses Joe Hayden, Rellie Davis, Sandy Davis, and Jack Smith, and to the admissibility of certain portions of the testimony of Joe Hayden, Rellie Davis, and Sandy Davis given at the coroner’s inquest, and on the former trial of this case. Appellant contends that, as he was not present at the coroner’s inquest, the testimony was inadmissible even for impeachment purposes. The court, in approving the bills, states:

“When the witness was interrogated by counsel for the state with reference to his testimony on the former trial of the ease and before the coroner, and counsel for the defendant objected to the questions asked, counsel for the state then stated in reply, to the objections by defendant that the testimony was not offered for the purpose of showing how the homicide occurred or the facts relating thereto, but was only offered for the purpose of laying a predicate for the introduction of testimony showing that the witness had made contradictory statements to that made by him upon the present trial of the ease for the purpose of impeaching the testimony of the witness and affecting his credibility, and for no other purpose, and when counsel for the state in 'rebuttal offered the previous statements and testimony of the witness, he also stated that the same was offered, not for the purpose of showing the facts as to the defendant’s guilt or innocence, but only for the purpose of affecting the credibility of the witness and impeaching his testimony given on the present trial of this case by showing that he had previously made contradictory statements from his testimony given on the present trial of this case, and that said testimony was admitted solely for that purpose, and the court then stated to the jury that the testimony could not be considered by them as affecting the guilt or innocence of the defendant, but solely for the purpose of affecting the credibility of the witness sought to be contradicted, and that it was for the jury to say whether or not such testimony did affect his credibility.”

The court in his charge instructed the jury:

“You axe instructed that certain evidence read to you by the state which purported to have been given by the witnesses Joe Hayden and Rellie Davis before M. McDonald, justice of the peace, at the inquest proceedings over the body of the deceased, was admitted before you, not for the purpose of affecting the guilt or innocence of the defendant, but was only admitted for the purpose of or not affecting the credibility of said witnesses Hayden and Davis, and it is for you to determine whether or not said testimony does affect the credibility of said witnesses, and you must consider the same for no other purpose.
“You are instructed that certain evidence read to you by the state which purported to have been given by the witnesses Rellie Davis and Sandy Davis before the criminal district court of Harris county, Tex., at a former hearing of this case was admitted before you, not for the purpose of affecting the guilt or innocence of the defendant, but was only admitted for the purpose of or not affecting the credibility of said witnesses Rellie Davis and Sandy Davis, and it is for you to determine whether or not said testimony does affect the credibility of said witnesses, and you must consider the same for no other purpose.”

When one seeks to impeach a witness by proof of former contradictory statements to his evidence oh the trial, it is immaterial whether the appellant was present or not. Mr. Branch, in section 871 of his Criminal Law, correctly states:

It is “not error to permit the state to impeach the witnesses for defendant by proof of contradictory /statements, where witness denies making the statements or testifies that he does not remember making the statement inquired about” — citing Huffman v. State, 28 Tex. App. 178, 12 S. W. 588; Levy v. State, 28 Tex. App. 209, 12 S. W. 596, 19 Am. St. Rep. 826; Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108; Campos v. State, 50 Tex. Cr. R. 292, 97 S. W. 100; Newman v. State, 70 S. W. 953.

Again he says;

“Witnesses may be impeached by proof of his statements before the grand jury which are in_ conflict with his testimony given on the trial” — citing Clanton v. State, 13 Tex. App. 153; Rippey v. State, 29 Tex. App. 43, 14 S. W. 448; Gibson v. State, 45 Tex. Cr. R. 313, 77 S. W. 812; Wyatt v. State, 38 Tex. Cr. R. 259, 42 S. W. 598; Gallegos v. State, 48 Tex. Cr. R. 61, 85 S. W. 1150; Wooley v. State, 64 S. W. 1055; Turner v. State, 51 S. W. 367; Gutgesell v. State, 43 S. W. 1016.

Appellant cites those cases which hold that such testimony is not admissible as original testimony, and hold that, where the testimony does not tend to impeach any evidence given by the witness on the trial of the case as to the main issues, it is not admissible. Those cases correctly so hold, but each of these witnesses claimed to be present and testified to material facts about incidents occurring at the time of the homicide in appellant’s behalf, and the state was properly permitted to show that they had not so testified at the coroner’s inquest and on the former trial of this case on those material issues. As to the witness Jack Smith, the state did not introduce any of his testimony given at the coroner’s inquest', nor at the former trial in this case, but, when he answered the questions propounded that he did not so testify, the state permitted such testimony to remain unim-peached.

The next bill, No. 5, is rather lengthy, and purports to give a portion o.f the argument of Mr. Harris in the opening address for the prosecution. This bill the court declines to approve, and appellant does not seek to prove it up in the manner provided by law. When the court rejected the bill for the reason stated by him, if appellant desired to present the questions for review, he should have proven it up as required by the statute, that the remarks complained of were, in factr, used on that occasion by Mr. Harris.

The next bill includes the entire address of Mr. Love in the closing argument for the state, embracing some 16 pages of typewritten matter. Appellant, before Mr. Love began his speech, stated that he had secured the services of a stenographer to report the speech, and stated:

“That the defendant desired to take a bill of exception to any and everything that Mr. Love might say in his closing argument which was not sustained by the record, or which was unjustified by the record, or that might be of an inflammatory character, or calculated to injure the rights of appellant.”

As this blanket bill was thus taken in advance of the speech being made, it would be incumbent upon appellant at the close of the argument to point out those portions of the speech to which he objected, and we find in the record three special charges requesting the court to instruct the jury not to consider certain portions of Mr. Love’s address, and we must conclude these are the only portions of the speech which appellant thought injurious to him ór out of the record. In the first he asked the court to instruct the jury:

“That argument of the state’s private prosecuting counsel as to the size of the knife used by defendant at the time he cut the deceased being other or being larger and longer than that testified to by the defendant will not be considered by you.”

It is true that appellant was the only person who testified as to the size of the knife, but there was evidence as to the character of the wound, the depth of it, and that it penetrated the chest cavity. These facts would authorize state’s counsel to argue as to the' probable length of the blade of the knife, and he would not be compelled to accept defendant’s testimony as to the size of the knife. The argument was legitimate.

Appellant also requested the court to instruct the jury:

“You are instructed not to consider the argument of private prosecuting counsel with reference to a pistol not being a deadly weapon,, as there is no such issue involved in this case, and such argument is not justified by the record.”

Counsel was presenting the question that you must always consider the mode and method of the use of a weapon in passing on whether or not an instrument is a deadly weapon, and whether or not death was intended. He said, if a pistol was thrown at a. man and not fired, etc., it would not necessarily be a deadly weapon. Taking tbe connection in which the argument was presented, it was not improper. He also requested the court to instruct the jury:

“Not to consider the argument of private prosecuting counsel about the widow and children of deceased, and about her being made a widow and them orphans, and like expressions ■of counsel, and about defendant being a culprit, and other like argument made in his closing remarks.”

Nothing improper is here shown; to refer to a defendant as being a culprit is rather a mild expression in comparison with language sometimes used. As to referring to the widow and her children, the widow was a witness for the state, and that she was a widow the jury was necessarily so informed by her testimony. The record also discloses that appellant left the children orphans, and appellant, if he expected us to review the speech, should have pointed out in some way the objectionable part thereof. The matter is presented in too general a way to call for review.

The objection that the court erred in submitting the issue of murder, and in refusing to give the special instructions requested by appellant, instructing them that the evidence was insufficient to authorize a conviction for murder, presents no error. While it is true the evidence offered in behalf of defendant would present self-defense, yet the state’s case is that appellant killed deceased because he refused to deliver to him his mail; that both cursed each other, and, when deceased called appellant “a black son of a bitch,” appellant drove his knife into his breast, inflicting a fatal wound. Article 1131, Penal Code, provides that insulting words or gestures are not adequate cause to reduce an offense to manslaughter, and, according to the state’s case, the most deceased did was to curse appellant and order him out of the house.

We have carefully reviewed each and every one of the exceptions to the charge of the court. Several of the errors objected to were cured by the court changing his charge to conform to the objections as made. The other exceptions present no error. It was proper for the court to limit the testimony introduced to impeach the witnesses named, and this paragraph was properly worded. It is copied hereinbefore, and we do not deem it necessary to do so again. The special charges requested were fully covered by the court’s main charge. He presented manslaughter in a way not complained of; also the issue of aggravated assault. On the issue of self-defense he instructed the jury:

“Reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said Morris Susholtz, but further believe that at the time of so doing the deceased had made or was making an attack on him which, from the manner and character of it and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and, if the deceased was armed with an ax handle at the time he was killed, and was making such attack on defendant, and if the ax handle used by him (if any) and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or to inflict serious bodily injury upon the defendant.
“In determining whether the defendant acted in what reasonably appeared to him to be his necessary self-defense, it is the duty of the jury to look at the transaction from what you believe from the evidence was the standpoint of the defendant at the time, and consider the same in the light of the facts and circumstances as you believe they appeared to the defendant at the time, and not from any other standpoint, but it is for the jury to determine from the evidence what were the appearances to the defendant, and what the standpoint of the defendant was, and in what light he did, in fact, view the facts and circumstances.”

This fully covered the issue of self-defense as presented by the testimony, and appellant’s criticisms are not well founded.

The judgment is affirmed.
      «=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>I<'or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes