
    DRAKE v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.
    Rehearing Denied Dec. 4, 1912.)
    1.Criminal Daw (§ 736) — Confession-» Admissibility.
    ■Where a confession, signed by accused, stated that he made same to the county attorney freely and voluntarily, after having been warned that he did not have to make it, and that it could be used against him, it was not inadmissible, under the statute relating to the admissibility of confessions, though accused’s testimony raised the issue that it was not freely and voluntarily made, and that he was not aware of its contents; such issue being for the jury.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1219,1220, 1701, 1702, 1705, 1716; Dec. Dig. § 736.]
    2. Criminal Law (§ 489) — Expert Testimony — Cross-Examination.
    Where, in an incest case, a doctor testified, on cross-examination by accused, that the hymen would have been injured by penetration beyond a certain depth, it was not improper for the state to adduce, on redirect examination, that there were cases of women being impregnated without destroying the hymen.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1078; Dec. Dig. § 489.]
    3. Criminal Law (§ 338) — Evidence—Materiality.
    Testimony of accused’s witness in an incest case, that she had stopped visiting at accused’s home because she believed a third party and accused’s wife were criminally intimate, was properly excluded, where neither the wife nor the third party were used as witnesses, especially where other witnesses were permitted- to state all facts showing such criminal intimacy.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 752-757, 787, 788, 801, 855; Dec. Dig. § 338.]
    4. Criminal Law (§ 655) — Conduct of Counsel — Admonition by Court.
    Where counsel for accused sought by certain remarks to get excluded evidence before the jury, it was proper for the court to state, in the jury’s presence, that counsel’s statement was improper, and he must not again make such statements.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    5. Incest (§ 13)' — Admission of Evidence.
    In an incest case the court properly excluded testimony as to what police and detectives told the prosecutrix and her mother when the complaint was made.
    IEd. Note. — For other cases, see Incest, Cent. Dig. § 11; Dec. Dig. § 13.]
    6. Criminal Law (§ 675) — Cumulative Character — Evidence.
    Where some dozen witnesses testified to accused’s reputation, and the state admitted that his reputation as a law-abiding citizen was good, it was not error to refuse to permit other witnesses to testify to the same fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 859, 1607; Dec. Dig. § 675.]
    7. Criminal Law (§ 824) — Instruction-Defining Terms.
    .Failure of the court to define the words “carnal knowledge” and “carnally know,” as used in an instruction in an incest case, was not error, in the absence of a request therefor; such words having a plain, well-understood meaning.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004, Dec. Dig. § 824.]
    8. Incest (§ 6) — Nature of Offense.
    The depth of the penetration is not material to the crime of incest, where there is an emission.
    [Ed. Note. — For other cases, see Incest, Cent. Dig. § 5; Dec. Dig. § 6.]
    9. Criminal Law (§ 945) — New Trial-Grounds.
    The fact that a doctor, after testifying in an incest trial to making an examination of the person and clothing of prosecutrix, in which he discovered a certain state of facts, subsequently testified at the hearing on a motion for new trial that he made another examination after accused’s conviction and discovered a different state of facts, did not present. ground for a new trial, where there was no evidence that the conditions discovered at the later examination existed at the time of the former examination, especially where the facts discovered at the former examination were corroborated by other testimony and accused’s confession, made shortly after the alleged occurrence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. § 945.]
    10. Criminal Law (§ 1099) — Appeal and EReok — Motion foe New Trial — Review op Ground.
    Where the testimony relied upon as a ground for a new trial in an incest case was not filed until after adjournment of the term of court at which the accused was convicted, such ground could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Tarrant County; R. H. Bucli, Judge.
    T. Drake was convicted of incest, and he appeals.
    Affirmed.
    Poulter & Johnson and Mays & Mays, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty Gen., for the State.
    
      
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      For otner eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted, of the offense of having sexual intercourse with his daughter.

The state introduced the following confession of defendant: “My name is T. Drake. I make the' following statement to the county attorney, John W. Baskin, freely and voluntarily, and after having been warned by him, ■the said John W. Baskin, first, that I do not have to make any statement at all, and, second, if I do make any statement, such statement can be used in evidence against me in my trial for the offense concerning which the statement is made, and cannot be used for me. I am 42 years of age. X have been living in Ft. Worth for six years. I am a' car repairer on the Rock Island Railroad. I have four children. My oldest daughter’s name is Eva Drake, and she is 15 years of age. Last night, to wit, the 11th day of August, 1911, about 8 or 9 o’clock, I was sitting on my front steps, and Eva came out and sat down by me. My wife was at a lodge meeting. She (Eva) began picking at me and teasing me, and I began picking at her and teasing her. My passion then got the best of my judgment. I got up and went out back toward the barn. Eva followed me. When we got back there, I threw my arm around her and drew her up to me. I then reached down and unbuttoned her drawers and let them drop down. I then told Eva to lay down on the ground, which she did. I then got down on her with my penis out. I spit on my hand and rubbed it on her private parts. I attempted to insert my penis in her private parts, but could not make the entry. I kept up the motions, and finally succeeded in inserting my penis in her private parts a short distance, not more than an inch, I am sure. I withdrew my penis to keep from making a discharge in her, and discharged between her legs. Just before I got through, she complained of it hurting her; That is the only time I ever had anything to do with her. My wife is delicate to such, an extent that I am unable to gratify my passion with her, and I just let my passion, get the best of me. [Signed] T. Drake.”

Many objections were urged to the introduction of this confession, but none of them are tenable. This court has been frequently called upon to construe this statute, and the construction finally adopted is announced in Henzen v. State, 62 Tex. Cr. R. 336, 137 S. W. 1141, and this confession is in accordance with the rule there announced. While the defendant’s testimony raised the issue that it was not freely and voluntarily made, and that he was not aware of the contents of the paper when he signed same, yet the court submitted that issue to the jury in his charge, and in a way that is not criticised by defendant in his motion for a new trial.

In his next bill of exceptions it is-shown that Dr. McElroy had testified that on the day following the alleged offense that he had examined the private parts of the prosecuting witness; that he found an inflamed» condition, etc., and on her clothing a discharge that indicated intercourse with a. man. On cross-examination defendant developed that her hymen was not destroyed nor punctured, and, in his opinion, that if she had been penetrated by the male organ» of a man more than a given depth it would have injured the hymen. On direct examination the state developed that in the medical world it was known that there were cases where women had become impregnated without destroying the hymen. This latter testimony was objected to by defendant. As the doctor had testified, at the instance of defendant, that, in his opinion, the girl, if penetrated, had been penetrated only a given depth, and based his opinion on the fact that the hymen had not been destroyed; nor injured, the testimony adduced on redirect examination was admissible as an aid to the jury in passing on the weight of the testimony of the opinion of the doctor that penetration could not have been beyond a given depth without the hymen being affected.

Appellant desired to prove by a witness that she had stopped visiting at the home of defendant, because she believed that one B. M. Howard and the wife of defendant were criminally intimate. As neither the wife of defendant, nor B. M. Howard, were used as witnesses in the case, the court did not err in excluding the testimony. It further appears in the record that defendant had sum-' moned Howard as a witness, and moved to continue the case on account of his absence; but when the attendance of Howard was secured the defendant declined to place him upon the witness stand. The same ruling applies to the excluded testimony of the witness Wentzell.

When the defendant’s counsel made the. remarks he did in the presence of the jury, what the court said to him was not improper. He had brought about the occasion for the remark that the statement made by counsel was an improper one, and he must not make such statements again. When the court has sustained an objection to evidence, counsel should not seek to get the testimony before the jury in this way; and when he does, if the court only informs the jury that it was improper for counsel to have made such statement, he is dealing with the matter as leniently as one should expect.

It appears from the qualification of the court that he permitted the witnesses to state all facts and circumstances which would show improper relations between the wife of defendant and Howard; and this was certainly as far as defendant was entitled to go, in the absence of either of them testifying.

The court properly excluded the testimony as to what the city police and detectives told the prosecuting witness and her mother on the occasion when complaint was made as to the alleged crime of defendant.

Some dozen witnesses had testified to the reputation of defendant, and the state admitted that the reputation of defendant as a law-abiding citizen was good. The record being in this condition, there was no error in the court declining to permit other witnesses to testify to the same fact.

In his motion and in his brief defendant earnestly insists that the facts do not show that defendant had a completed act of sexual intercourse with his daughter, and the court erred in not defining the words “carnal knowledge” and “carnally know.” These words have a plain, well-understood meaning, and the jury could not have been misled by their use. If defendant desired them explained, he should not have waited to complain in his motion for a new trial, but should have requested that a definition be given at the time of trial. When the meaning of words are so well understood by all mankind as are these words, if a definition of them isi desired, a request must be made at the time of trial. As to the facts not showing a completed act of intercourse, the confession of defendant herein copied answers that complaint. The testimony of the daughter is also ample upon which the jury would be authorized to so find. The depth of penetration, if there is penetration, is immaterial, where there was an emission, as shown by the testimony of the daughter and the confession of the father.

The only other ground in the motion alleges newly discovered testimony. Dr. Kibbie had testified on the trial to examining the girl a day or so after the alleged offense, and examining the discharge found on the dress, and stated, in his opinion, it was an emission from the male organ, and had stated: “So far as my knowledge goes, I do not believe this spot could have been any other mixture than the discharge of the male. I do not know of any other discharge that would give me those cells. There is some difference in the discharge from a man and the discharge from a woman. I do not believe this could have been a discharge from a woman, because, in the first place, the quantity attracted my attention, and the amount of stiffness there; and, secondly, the character of cells that are thrown out from the male, which differ from the female — the epithelium cells. It is almost impossible to make a practical explanation of it, because the cells in the body vary according to where they come from; but the little granules in the cells that were present in this discharge indicated to me that it was the seminal discharge of a male of some sort.” After the conviction of defendant, on the hearing of the motion for a new trial, he again testified, and stated the date of the original examination was August 11th, the day after the alleged offense; that since the trial of the case, on December 2d, he again examined her, and found that at that time she was suffering from a venereal disease — • clap — and that the character of discharge from this disease might have produced the spot he found on the dress on August 11th. There is no positive testimony offered that if the girl was suffering from this character of disease in December that she was also suffering from it in the month of August prior thereto; and it seems remarkable to us that if the physician could tell in December that she was afflicted with this disease, if she had the disease in August, in his examination of her — the character and kind he says he made in August — he would not have discovered and thus diagnosed the case in August. But, be that as it may, without proof that the girl was suffering from this disease at the time of the examination in August, it does not present ground for a new trial, especially in the light of the confession of defendant, made shortly after the alleged occurrence. Our decisions all hold that the newly discovered evidence must be such that it would probably produce a different verdict; and in passing on this question we must consider the testimony adduced on the trial. Burns v. State, 12 Tex. App. 269; Hasselmeyer v. State, 6 Tex. App. 21; Wharton’s Crim. Law, § 3161; Arch. Cr. Pr. & Pl. (6th Ed.) 178, § 26. In the light of the testimony and defendant’s confession, testimony that this discharge could have been produced from the discharge of a female suffering with this disease would not have changed the result,, and the court did not err in overruling the motion.

While we have discussed this ground of the motion, yet] this testimony on an issue found on a ground in the motion for a new trial, was not filed until after the adjournment of court, and cannot properly be considered by us. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and cases there cited.

The judgment is affirmed.  