
    OSBORNE v. STATE.
    (No. 9740.)
    (Court of Criminal Appeals of Texas.
    June 9, 1926.
    State’s Rehearing Granted Jan. 19, 1927.
    Appellant’s Rehearing Denied March 23, 1927.)
    On State’s Motion for Rehearing.
    1. Rape @==>44 — Testimony that defendant, accused of statutory rape, had at other times
    ' taken indecent liberties with prosecutrix falling short of intercourse held admissible.
    In prosecution for statutory rape, testimony that defendant had on other occasions taken indecent liberties with proseeuti’ix, and had been seen with her in compromising positions, held admissible, where acts shown fell short of intercourse.
    2. Rape'<§=44 — Familiarity, association, and intimacy of parties may be shown by acts failing short of other acts of intercourse.
    Acts showing intimacy, familiarity, and association between parties, but falling short of showing another act of intercourse, are admissible in prosecutions for rape.
    3. Criminal law @=>l 169(2) — In rape case, alleged error in admitting testimony held not ground.for reversal where prosecutrix later gave similar testimony without objection.
    In rape case error, if any, in admitting testimony of certain witnesses as to acts of familiarity other than that charged held not ground for reversal where defendant’later permitted
    prosecutrix to give t similar testimony without objection, except that she was incompetent because not understanding oath.
    4. Indictment and information @=>125(37) — indictment charging that defendant did “ravish and have carnal knowledge” of girl under 18, held not to charge rape by force and statutory rape in same count.
    Indictment charging defendant did “ravish and have carnal knowledge of” girl under 18, not his wife, held not duplicitous as charging in one count both rape by force and rape upon female under age of consent.
    5. Criminal law @=>406(3) — Defendant’s statement after released by mayor that he would stay away from prosecutrix held not inadmis-. sible in prosecution for statutory rape as made while under arrest.
    In prosecution for statutory rape, statement of defendant made after he had been taken to mayor and released by him that he would stay away from prosecutrix held not inadmissible on ground of having been made while defendant was in effect under arrest.
    6. Witnesses @=>40(2) — Permitting 8 year old prosecutrix to testify in rape prosecution held not reversible error.
    In prosecution for rape of 8 year old girl, trial court’s action in permitting prosecutrix to testify after satisfying himself of her understanding and intelligence held not reversible error; abuse of discretion not being shown.. '
    7. Criminal law @=>1168(3) — Ruling as to competency of witness will not be disturbed in absence of abuse of discretion.
    Competency of witness being for determination of court, ruling thereon will not be disturbed in absence of showing abuse of discretion.
    On Appellant’s Motion for Rehearing.
    8. Rape @=>16(5) — Person handling female under 18 in manner indicating intent to subject her to his power for purpose of intercourse was guilty of assault to rape.
    One taking hold of female under 18 and handling her in such manner as to indicate present intent to subject her to his power so that he could accomplish act of intercourse was guilty of assault to rape.
    Commissioners’ Decision.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    N. J. Osborne was convicted of assault to rape, and be appeals.
    Affirmed.
    Frazier & Averitte, of Hillsboro, for appellant. .
    Will M. Martin, Co. Atty., of Hillsboro, Sam D. Stinson, State’s Atty., of Austin, land Robt. M. Byles, Asst. State’s Atty., of Groes-beck, for the State.
   BERRY, J.

The offense is assault to rape, and the punishment is 60 years in the penitentiary.

The prosecutrix in the ease was Zoenell Livingston, a little girl 8 years of age. The transaction which was submitted to the jury, and for which the appellant was convicted, occurred in Smith-Tomlinson’s Hardware Store in the town of Hillsboro. Prosecutrix testified that the appellant carried her up stairs, behind some stoves, and! had an act of intercourse with her. She was corroborated as to this transaction to the extent that other witnesses testified that prosecu-trix and appellant were in the store, up stairs, at about the time, but was contradicted by medical testimony as to the fact of penetration. The appellant did not testify in his own behalf, and no direct denial was made by him as to the transaction in the hardware store testified to by prosecu-trix.

With the record in this condition, the state proved by two witnesses that at another and different time they saw appellant and prosecutrix in a back alley in the town of Hillsboro, and at that time prosecutrix was sitting down with her clothes up, and the appellant was on his knees in front of her, and that he had his clothes open and his hand on his penis, and had an erection, and that he had his other hand up under the prosecutrix’s clothes. This testimony was properly objected to by the appellant, in that it did not serve to illustrate or shed light on any issue involved in the case and was proof of other and extraneous crimes. We think this testimony, under the record in this case, was not admissible. It is entirely sufficient to have justified the jury in believing that the appellant and prosecutrix were just attempting to begin or had just ended an act of intercourse at the time the witnesses stated they saw this transaction, and, the testimony as to the act for which the appellant was on trial being positive, and no question of intent, system, or motive being involved in the case, we fail to see how this evidence of another and separate transaction in any manner shed light on any is-, sue involved in this ease. The exact question has been presented many times before this court, and in many recent decisions we have held that evidence of other acts of intercourse between the parties is not admissible. Rosamond v. State, 97 Tex. Cr. R. 569, 263 S. W. 297; Rosamond v. State, 97 Tex. Cr. R. 639, 263 S. W. 1067; Walker v. State, 103 Tex. Cr. R. 555, 281 S. W. 1070. It is useless to write on this question again. It is fully discussed in the cases above cited and in many others that might be collated. Under the authorities, in view of the severe penalty assessed in this case, we would not be warranted in ignoring the error committed in the admission of this testimony as being immaterial.

For the above error, the judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On State’s Motion for Rehearing.

HAWKINS, J.

The state’s motion for rehearing has challenged our attention. A further consideration of the record leads us to believe we were in error in ordering a reversal of the judgment. To make clear the matter as it now appears to us it is necessary to make a more detailed statement than would ordinarily be called for.

It is revealed by bills of exception that the state called as a witness J. W. Little, city marshal of Hillsboro. Before he testified counsel for appellant stated to the court that they had talked to said witness and also to the witnesses Mrs. Penny and Mrs. Landrum, and stated that esich of them would testify to separate and distinct criminal offenses committed by appellant on the prosecuting witness Zoenell Livingston, and that by said latter witness only could the state present any testimony indicating the complete offense of rape. (It would be well to remember that the offense for which appellant was on trial as alleged in the indictment was that of rape upon Zoenell Livingr ston, a little girl about 8 years of age.) For the reasons given appellant requested the court to direct counsel for the state to first place prosecutrix on the witness stand. This request being denied, he objected to the testimony of Little, Mrs. Penny, and Mrs. Landrum on the grounds heretofore stated. The objection was overruled. Little testified that about two months before the date of the alleged offense he saw appellant and prosecutrix go into the candy kitchen; that he watched them, and that while prosecutrix was eating ice cream appellant had his hand under the table feeling of prosecutrix, and had his hand on her privates. The testimony of the two ladies is set out in the original opinion, and it is unnecessary to restate it here. The transaction testified to by them appears to have occurred in the daytime in an alley in the city of Hillsboro. This court has had occasion many times to announce that proof of more than one act of intercourse in a prosecution for rape is ordinarily not admissible unless coming within some of the exceptions exemplified in the cases cited in the original opinion, but it has never departed from the well-recognized rule that acts showing intimacy, familiarity, and association between the parties, but falling short of showing another act of intercourse, is always admissible. Branch’s Ann. Tex. P. C. subd. 4, § 1788; Henard v. State, 47 Tex. Or. R. 173, 82 S. W. 655, 11 Ann. Cas. 670; Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 785; Clardy v. State, 66 Tex. Cr. R. 351, 147 S. W. 570; Gibbs v. State, 88 Tex. Cr. R. 485, 227 S. W. 1107; Rosamond v. State, 101 Tex. Cr. R. 315, 276 S. W. 247. It may well be doubted if the testimony of Little as to tlie transaction occurring in tlie candy kitchen, and that of the two ladies as to what they observed in the alley, transcends the rule admitting testimony showing intimacy, familiarity, and association between the parties.

Aside from this, however, there is another reason why the admission of this evidence does not demand a reversal. Zoenell Livingston was called as a witness after the other parties had testified. The only objection urged to her testimony was that she was incompetent because not understanding the nature and obligation of an oath. This objection being overruled, the witness testified in detail to the transactions’referred to by Little and the two ladies, and also to appellant’s conduct towards her at other times. She gave evidence as to a transaction which occurred up stairs over the hardware store at about the date of the indictment and some two weeks prior to the transaction in the alley. It is not necessary to go into the details of her evidence with reference to the transaction over the hardware store, it being sufficient to state that, if her testimony had been received by the jury in its entirety, it was sufficient to make out a complete case of rape, but the testimony of physicians indicated that penetration had not been accomplished, and on this evidently the jury based the verdict of assault with .intent to rape. In testifying as to the transaction in the alley prosecutrix went further than the two ladies, prosecutrix claiming that appellant put her down on the ground, pulled her clothes up, and started to get on top of her about the time the ladies came up. All of this testimony from the little girl went into the record without any objection being urged that it related to independent offenses. The court restricted the right to convict to the transaction alleged to have occurred up stairs ■over the hardware store. We quote from Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169:

“It is well settled in this state that the erroneous admission of testimony is not cause for •reversal, if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Walker v. State, 17 Tex. App. 16; Johnson v. State (Tex. Cr. App.) 26 S. W. 504; Stephens v. State (Tex. Cr. App.) 26 S. W. 728; Logan v. State, 17 Tex. App. 50; West v. State, 2 Tex. App. 460; and Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991.”

See, also, Gurski v. State, 93 Tex. Or. R. 617, 248 S. W. 353.

The evidence of prosecutrix having gone before the jury without objection save that .she was an incompetent witness, the objection theretofore urged to the testimony of Little and the two ladies about the same matters is not available to appellant as basis for reversal, even should it be conceded that the court committed error in admitting it in the first instance.

Having concluded that We were in error in the original opinion in reversing the case upon the point heretofore discussed, it is proper now to dispose of other questions presented in the record.

Bills of execeptions 1, 2, 5, and 6 relate to the question already disposed of, and will not be further adverted to.

The indictment alleged that appellant made an assault upon prosecutrix; that she was under 18 years of age, and not appellant’s wife, and that appellant did “ravish and have carnal knowledge” of prosecutrix. Appellant attacked the indictment on the ground that it was duplicitous in that it charged in one count both rape by force, and rape upon a female under the age of consent, and did not apprise accused of what offense the state would seek to convict him. This court discussed the matter at some length in Dyer v. State (Tex. Cr. App.) 283 S. W. 820; Patton v. State (Tex. Cr. App.), 287 S. W. 51. Upon authority of those cases we think appellant’s contention untenable.

Bills of exceptions 3 and 4 relate to the same matter. After the witness Little had observed the conduct of appellant towards prosecutrix in the candy kitchen, he took appellant to the office of the mayor of Hillsboro, and testified that after the mayor had released appellant he made the following statement to witness:

“He said he had done wrong and he was sorry of it and he never would do it any more, and that he would get out of town and stay out of town and stay away from the little girl.”

Upon cross-examination it developed that appellant remained in the mayor’s office some 5 or 10 minutes, and left a few minutes after the mayor released him; that he had made practically the same statement to the mayor before he was released that he made to Little afterwards. Objection was interposed to admitting in evidence the statement made to Little on the ground that appellant was under arrest when it was made. After the facts were further developed on cross-examination a motion was made to have the court exclude the statement testified to by Little on the ground that appellant was either under arrest, or had been so recently released that he was still under a sense of restraint at the time it was made. We think the bills show no error in regard to the matter.

When the state offered prosecutrix as a witness objection was interposed that she was incompetent to testify, because not understanding the nature and obligation of an oath. Bills of exception 7 and 8 relate to this matter, and contain the evidence given by the witness. Both bills are explained' by a statement from the trial judge that before .the witness was permitted to testify he propounded to her a number of questions, and satisfied himself as to her intelligence and understanding. The rule controlling was restated in the recent case of Nichols v. State, 99 Tex. Cr. R. 504, 270 S. W. 555, as follows:

“The competency of a witness is primarily a matter to be determined by the judge presiding at the trial of the case, and his ruling will not ordinarily be overturned, unless it appears that in accepting the evidence judicial discretion was abused. Hawkins v. State, 27 Tex. App. 273, 11 S. W. 409; Charles v. State, 81 Tex. Or. R. 457, 196 S. W. 179; Anderson v. State, 88 Tex. Cr. R. 307, 226 S. W. 414.”

The same question is discussed in Hennington v. State, 101 Tex. Or. R. 12, 274 S. W. 599. We observe nothing in the bills leading to the conclusion that -the trial judge abused his discretion.in permitting the witness to testify.

The other complaints presented are criticisms of the charge and because of refusal of certain special charges. Upon investigation of these complaints we find no error which in our opinion calls • for a reversal. The charge given seems to have protected appellant in all his legal rights, and therefore it became unnecessary to give any of the special charges requested.

The penalty inflicted is a severe one and this has caused us to give most careful attention to th’e record. While the age of the appellant does not appear directly from the record, yet it is in evidence that his wife testified that she and appellant had been married 37 years. From this it is apparent that appellant was a man past middle life, yet the evidence shows persistent attention to the prosecutrix in this.case, who was a child only 8 years of age. His conduct towards her would result in the defilement of both her mind and body.

The state’s motion for rehearing is granted, the.judgment of reversal set aside, and the judgment of the trial court is now affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant devotes most of his motion to a discussion of the supposed error of the trial court in permitting testimony of various acts and transactions between appellant and the prosecutrix, each and all of which seem to have been admitted upon the ground that they showed intimacy and familiarity and association between the parties such as might lead the jury to conclude a greater likelihood of the commission of the offense. This matter was discussed and passed upon in our original opinion, in which, alter adhering to the general rule permitting such testimony, we further said that the testimony might be held admissible because the same facts substantially were given in evidence without objection by the prosecuting witness. Appellant’s attack is upon the soundness of ,this last statement. A more careful examination of the record leads us to conclude that, while appellant did not object to the testimony of prosecutrix regarding these transactions when same was originally offered, yet we find that after the evidence was concluded appellant made a motion to exclude the testimony of prosecutrix on the particular point referred to in our opinion as having been given in testimony by her without objection. Many authorities might be cited as supporting the proposition that, where illegal testimony has been admitted without objection, and thereafter a motion is made to exclude it, the trial court should have sustained the motion. Branch v. State, 15 Tex. App. 96; Thomas v. State, 17 Tex. App. 437; Phillips v. State, 22 Tex. App. 139, 2 S. W. 601; Martinez v. State, 100 Tex. Or. R. 22, 271 S. W. 1117; Hearne v. State, 50 Tex. Cr. R. 431, 97 S. W. 1050; Clay v. State, 78 Tex. Or. R. 141, 180 S. W. 277. However, we are of opinion that beyond any question the testimony was admissible as showing familiarity, friendship, and association between appellant and the little girl. In the comparatively recent case of Adams v. State, 95 Tex. Cr. R. 226, 252 S. W. 797, we had occasion to examine the authorities and reaffirm our adherence to the doctrine of the admissibility of such testimony. None of the transactions testified to by any of the other witnesses amounted to acts of intercourse between appellant and the prosecu-trix. All of them tended to show familiarity between them, intimacy existing, and frequent association, .and all of them tended to strengthen the likelihood of the commission of the offense as testified to by prosecutrix.

We are not in accord with appellant’s complaint at the charge of the court which was in substance that the jury were told that, if any person should take hold of a female under the age of 18 years and handle her in such a manner as under the circumstances of the particular case demonstrates a present intent to at once so subject said female to his power, she consenting or not, as that he may now accomplish the act of intercourse, he would be guilty of assault with intent to rape. We are inclined to think the objections to this charge are not well founded.

Being unable to agree with either of the contentions made by appellant, his motion for rehearing will be overruled. 
      <§=»For other cases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes
     