
    CAPLES v. STATE.
    (No. 3056.)
    Court of Criminal Appeals of Texas.
    May 27, 1914.)
    1. Rape (§ 41) — Assault to Rape — Evidence — Age op Prosecutrix.
    Where, in a prosecution for assault to rape, prosecutrix testified that she was a little over 16 years of age at the time of the assault, and that she was born in April, 1897, it was error to exclude the depositions of her father and mother taken by defendant showing that she was born in April, 1895.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § -60; Dec. Dig. § 41.]
    2. Criminal Law (§ 778) — Tbial — Evidence — Instructions.
    Where, in a prosecution for assault with intent to rape, it appeared that prosecutrix left the state in company with two men, and the state claimed that this was done to prevent her testifying against accused, and that she was arrested by officers and returned t-o Texas, but defendant denied all knowledge of her flight from the state, the court should have charged, at his request, that, if such flight vvas not done at defendant’s suggestion, solicitation, or connivance, it should not be considered against him for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.]
    3. Criminal Law (§ 815*) — Evidence — Plight — Instructions.
    Where, shortly after the alleged offense, accused left the state with a view to-attending school elsewhere at his mother’s request or command, and there was evidence that at this time he had no knowledge that an indictment had been returned against him or that process had issued, the court should have charged, at his request, that, if he had no such knowledge when he left the state, the fact of his leaving could not .be considered against him at all.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    4. Criminal Law (§ 673) — Witnesses — Credibility — Instructions.
    Where witnesses for accused who were charged with having taken prosecutrix out of the state had been arrested as accessories, held to the grand jury, and then discharged, and evidence of such arrest, etc., was admitted to affect their credibility, it was- error to refuse to charge that such testimony was limited to that purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    5. Criminal Law (§ 772) — Trial—Instructions — Defenses.
    Where, in a prosecution for assault to rape, prosecutrix testified that defendant caused certain bruises on her face in such alleged assault, which defendant positively denied, and there was other evidence that prosecutrix on the occasion in question was badly intoxicated, and that after defendant had discharged her from his automobile she had fallen on the steps of her hotel, and, while endeavoring to enter a room in the hotel, had also struck her face against the door facing, it was error to refuse to charge that, if the bruises were caused by her falling on the steps, if she so fell, or in running against the door facing, if she did so, or in any other manner than by the assault and battery, or some character of force used by defendant, then such injuries could not be considered in determining defendant’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    6. Criminal Law (§ 200*) — Included Defenses — Acquittal.
    Where, in a prosecution for assault to rape, defendant was convicted of aggravated assault, such conviction operated as an acquittal of higher included offenses, so that on his conviction being set aside,' he could not be retried for any higher offense than that of -which he was convicted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    William Capíes was convicted of aggravated assault, and be appeals.
    Reversed and remanded.
    
      Stanton & Weeks and Hudspeth, Dale & McDonald, all of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen,, for. the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.
    
   DAVIDSON, J.

Under an indictment charging, in the first count, rape, and, in the second count, assault to rape, appellant was convicted of aggravated assault.

The record is very voluminous, containing a great many facts detailed at great length both for the state and the appellant. There are numerous bills of exception raising many questions. The prosecutrix, Ellen Godsey, testified to a condition of things surrounding her life that, to say the least of it, reflected seriously upon her good name. It would serve no useful purpose to commit this testimony to the Jurisprudence of our country. It is unnecessary to take up these hills seriatim; therefore the case will be treated more from a general than a special standpoint.

Among other things, the state elicited from her that she was little over 16 years of age at the time of the occurrence involved in this prosecution. She testified that her birthday was in April, 1897. The depositions •of her father and mother, who lived at Los Angeles, Cal., were taken by the defendant, among other things, showing her age to be 18, instead of 16; in other words, that she was born in April, 1895. Upon motion of the ■state, this testimony was not permitted to go before the jury. This was error. The state having introduced the age as being little over 16 years, the defendant had a right to combat this evidence by showing that she was 2 years older than she herself testified. It is a universal rule that wherever one side puts in evidence thought necessary or having a bearing upon the case favorable to the party introducing it, the other side has the right to meet such testimony and disprove it, in order to get away from any injurious effects that might be produced upon the minds of the jury by the introduction of the original testimony. It may have been that this was •critical testimony, and doubtless was important. Appellant was a young man about grown, and the jury would doubtless look more unfavorably upon his side of the case if the proséeutrix was only 16 years of age than they would if she was a more mature woman. The prosecutrix came from California to El Paso in connection with a theatrical company, and was well versed in the ways of the world, even for a chorus girl, as she 'testified she was. The evidence shows, among other things, in this connection that she drank heavily; exhibited her person in many unbecoming and lascivious ways. A woman in this line of life would likely be regarded by the jury as less experienced at 16 than she would with the added experience of 2 years, and where the depravity shown as in this case it would be .more intensified at the age of IS than at 16.

The theory of the state was that appellant made a violent assault upon the prose-cutrix, and thereby accomplished the purpose of rape, and her testimony goes to the extent of showing that, while he did not fully accomplish his purpose so far as she knew, but that he did, in fact, penetrate her person. This was denied by appellant. His testimony was to the effect that he and prose-cutrix and some other girls who belonged to the “show company” and a gentleman friend of his had' been on a general carouse that night drinking in El Paso, then crossing the river and going to Juarez, and drinking a great deal there; and after they returned from Juarez to El Paso he and prosecutrix took a ride down the El Paso Yalley, and after reaching a certain point stopped and drank ten bottles of beer, five each; that, while this was going on they were sitting on the fender of the automobile, and that prosecutrix was very drunk, and he not in a much better condition, if any, and she placed her arm around his neck and thus drank the beer; that he fondled her person with full liberty and consent, and, after ascertaining the fact that her menstrual period was on her, he desisted. She testified that when he made the proposition to her she declined, and that this resulted in a struggle in which he struck her. Upon their return that night to town she left him and went to her room. He says at that time she had no bruises about her person or face. There is testimony also of one of the roomers at the hotel that he heard a woman whoop; that he got up and looked out .to see what was the matter; that she was drunk and fell, and also, after getting up, she undertook to get into one of the rooms, and struck her head against the door. This evidence was introduced to account for the bruises about the face. It is further in evidence that in driving down the valley prosecutrix wanted to handle the car, which was resisted by appellant on account of her drunken condition; that she finally got hold of the steering wheel; that she was handling it indiscreetly; that he was afraid the car would be ditched or turned over, and he pushed her away. The court submitted the theory of pushing the girl away under the circumstances as not being sufficient to justify a conviction for aggravated assault.

He also instructed the jury, in substance, if he did not perform the acts testi-tified by prosecutrix, it would not be rápe. Among other things, in this connection, it is shown that the prosecutrix left the state, and went to Deming, N. M., in company with two men. The state’s theory was that this was done to get rid of her as a witness in the case against appellant. Quite a lot of evidence was introduced showing the fact that she went to Deming, N. M., and was there arrested by the officers and returned to El Paso. The court did not charge the jury with reference to this matter. Appellant asked a special charge to withdraw it from the consideration of the jury, if they should find it was done without the consent, procurement or suggestion of appellant. The court refused to withdraw it from the consideration of the jury, or to instruct the jury not to consider it unless they should find that appellant was ' instrumental in having her carried out of the state. We are of the opinion that, as presented by the record, it is more than doubtful if testimony was admissible, but if upon another trial the facts should be sufficient to show that probably it was done at his suggestion, then the charge should be submitted to the jury that, if he did not induce her to leave the state, and it was not done by his connivance or instigation, then it should not be considered against him. He denies any connection with this matter. In the introduction of this testimony with reference to the flight of the girl from the state, it would not be evidence against the defendant unless the state could in some way show he was instrumental in, or connived at, her flight, or instigated her being carried out of the state. This character of testimony was evidently damaging, and, as it was most strenuously denied he had anything to do with it, and, in fact, was absent from the state when the matter occurred, the court should either have excluded the testimony altogether, or, if he thought there was enough evidence to probably show he was connected with it, then he should have instructed the jury that, before they could consider it against him, they must find that he procured her flight, or in some way instigated it. The special charges aslred by appellant along this line were improperly and incorrectly refused.

The defendant left the state and went to Las Cruces, N. M., with a view of going from there to St. Louis or some point to attend school, and this was done at the reguest of his mother, perhaps at her command. It is also in evidence that appellant was. not aware at the time he left Texas and when in New Mexico that an indictment had been returned against him, or there was any process against him. The court charged the jury in this wise in this connection:

“You are instructed that, if you should find and believe from the evidence that the defendant left his home in El Paso, Tex., and went away out of the jurisdiction of this court at the suggestion of his mother, and in compliance with her request, for the purpose of going to school, and not for the purpose of avoiding process of this court and his arrest, then such evidence cannot be considered by you as any evidence tending to show his guilt.”

The appellant asked this instruction:

“You are instructed that if you should find and believe from the evidence in this case that the defendant, just shortly after the alleged offense, left his home in El Paso, Tex., and went away, but that at the time he left that he did not know that the grand jury had returned an indictment against him and that a warrant had been issued for his arrest, but had reason to believe, and did believe, that no such indictment had been returned, and that he went away at the suggestion of his mother, and in compliance with her request, for the purpose of going to school, and not for the purpose of avoiding process of the court and his arrest, then, such evidence cannot be, and will not be considered by you as any evidence tending to show his guilt.”

The court in a way submitted, this question, but nbt as fully as it should have been, and the charge upon another trial should go further and tell the jury that it should not only not be considered as evidence of his guilt, but should not be considered against him at all.

There was evidence introduced before the jury that Dave Marshall and Harry Davis had been arrested as accessories to appellant in taking the girl out of Texas into New Mexico. It seems they had an examining trial, and were held for the action of the grand jury. The grand jury failed to indict, and they were discharged. All this evidence went before the jury for the purpose of impairing their credit as witnesses. They were important witnesses, especially Davis. The court did not limit the effect of this testimony to the credibility of the witnesses, and, in fact, gave no charge in reference to the matter. Appellant requested a special instruction, which was refused by the court. This charge is as follows:

“You are further instructed that the evidence before you in reference to the prosecution of the witnesses Dave Marshall and Harry Davis was introduced before you, and only to be considered by you, for the purpose of affecting their credibility as witnesses, and for no other purpose, and the court therefore charges you that you will not consider the said evidence for any other purpose in said cause.”

This was refused, and erroneously so.

The court submitted generally the issue of aggravated assault, but did not instruct the jury with reference to the contention of appellant that he did not strike or bruise the prosecutrix, as testified by her, but that she obtained her bruises and hurts in a hotel after they returned from their ride. To meet this phase of the case appellant asked a special instruction, as follows:

“You are further instructed that, if you find from the evidence that the face of the said Ellen Godsey, or any portion thereof, was bruised, or in some manner injured, and that such bruises and injuries, if any, were caused by the said Ellen Godsey falling upon the steps of the Hol-lenbeck Hotel, if you believe that she did so fall, or if you find from the evidence that the said injuries, if any, were caused by the said Ellen Godsey running against the door facing at room No. 5, in the said Hollenbeck Hotel, if you believe that she did run against the door facing of said room, or if you find from the evidence that the said Ellen Godsey received such injuries, if any, in any other manner than by an assault and battery or some character of force used by the defendant, William Capíes, then and in that event the court charges you that you cannot consider the said injuries, if any, in determining whether the said defendant is guilty of any offense submitted to you in the general charge of the court.”

This was refused. This charge should have been given. There was evidence introduced covering these identical matters, and the jury should have been instructed that, if she received these injuries on the face, which she says was caused by appellant striking her, from the fall in the hotel, or from running against the door, as shown by some of the testimony, then appellant would not be guilty of an assault from that viewpoint. It may be stated in a general way, in this connection, that it would seem from this record that the evidence upon which this conviction was had was the bruises on prosecu-trix’s face. The jury discredited her testimony to the effect that appellant had carnal intercourse with her or penetrated her person; for they acquitted him óf rape and assault to rape, and only found him guilty of aggravated assault. The bruises on the face of the prosecutrix was the most important and critical testimony introduced to show assault and battery. If he placed the bruises upon her face, .it was very damaging testimony against appellant. If she did not have those bruises upon her face at the time she separated from him and went into the hotel, and she received them from a fall or by running against a door, appellant would not be responsible, for he was not present, but had driven away in his car. This charge was directed to one of the most critical issues in the case, and should have been given, and, in failing to do so, the court committed material error.

There are other questions 'in the case of more or less moment, but we deem it unnecessary to discuss them, inasmuch as what we have said will determine how the case should be tried, if it should be tried again. The issues of rape and assault to rape pass out of the case by the verdict of the jury. Upon another trial the state now can only rely upon the fact of an assault upon the girl, if it, in fact, occurred, and the testimony and issues will 'be directed to that issue alone.

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