
    SCITERN v. STATE.
    (No. 5679.)
    (Court of Criminal Appeals of Texas.
    March 17, 1920.)
    1. CRIMINAL law <&wkey;1144(3) — Motion to QUASH INDICTMENT PRESUMED OVERRULED AT END OP TEEM.
    Where no order on a motion to quash an indictment appears in the record, and the bill of exceptions only states that it was overruled, the presumption obtains that such motion was overruled by operation of law at the end of the term.
    2. Indictment and Information <&wkey;139— Motion to quash must precede change op VENUE.
    A motion to quash an indictment not presented and disposed of prior to change of venue comes too late, in view of Code Cr. Proc. 1911, art. 630.
    3. Rape <&wkey;-22 — Allegation that injured PARTY IS A FEMALE HELD SUFFICIENT.
    An indictment for assault with intent to rape, alleging “did then and there unlawfully in and upon” L., “a female, make an assault with the intent then and there,” etc., sufficiently alleges that the injured party is a female.
    4. Witnesses &wkey;>243 — Leading questions op THIRTEEN YEAR OLD PROSECUTRIX RELUCTANT TO DESCRIBE DEPENDANT’S ASSAULT WERE PROPER.
    .In a prosecution for assault to rape, where prosecutrix at time of trial was 13 years old and reluctant to describe fully defendant’s treatment of her, but had testified that defendant laid hei; on the grass and unbuttoned her panties, it was within the court’s discretion to allow prosecutrix to be asked whether defendant put his hands under her clothes and, after answering, “Yes,” to be asked questions suggesting the answer' that he put his hands on her private parts, notwithstanding objection to the questions as leading.
    5. Criminal law &wkey;366(4) — Rape &wkey;47— Evidence of prosecutrix’s fear of defendant AFTER ASSAULT TO RAPE HELD INADMISSIBLE.
    In a prosecution for assault to rape, it was error to permit prosecutrix to testify over objection that subsequently defendant came to her mother’s house and she hid from him because of fear; such testimony not being res gestse, nor otherwise shown admissible.
    6. Criminal law <&wkey;719(3), 1171(1) — State’s ATTORNEY’S STATEMENT OF FACT OUTSIDE RECORD HELD ERRONEOUS AND PREJUDICIAL-.
    Where a state’s attorney’s statement was tantamount to a statement that the fact sought by his question, which was objected to, was the truth, and that defendant’s counsel knew it and did not want the truth to come out, the question having assumed matters outside the record, his statement was improper and prejudicial, apd the Court of Criminal Appeals will not speculate as to the amount of the injury.
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    ' C. C. Scitern was convicted of assault with intent to rape, and he appeals.
    Reversed and remánded.
    C. E. Sheppard, of Sulphur Springs, and Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    Alvin M. Owsley, Asst.-Atty. Gen., for the State. - '
   LATTIMORE, J.

Appellant was convicted in the district court of Hopkins county, of the offense of assault with intent to rape, and his punishment fixed at confinement in the penitentiary for a term of four years.

The case originated in Franklin county, and the venue was changed to Hopkins county; the date of the order of transfer being March 13, 1919. When the case was called for trial in Hopkins county, at the August term of the court, a motion to. quash the indictment was made. No order of the court on this motion appears in the record, but it is stated in a bill of exceptions that said motion was overruled-. The presumption, in the absence of any order, would be that the same was overruled by operation of the law at the end of the term.

The motion to quash came too late. It is essential that such motions should be presented and disposed of before the venue is changed. Article 630, G. G. P.; Fitzgerald v. State, 219 S. W. 199 (decided at the present term); Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792. However, we think the indictment sufficient, and that appellant, in his assumption that the same fails to allege that the injured party was a female, is mistaken. The direct allegation is as follows:

“Did then and there unlawfully in and upon Lois Reaves, a female, make an assault with the intent then and there,” etc.

It is shown by bill of exceptions No. 2 that, by leading and suggestive questions, the state’s attorney was permitted to elicit from prosecutrix the statement that appellant placed his hand upon her private parts. In this connection, it was shown that prosecutrix was a girl 13 years of age at the time of giving her testimony, and that in her general statement to the jury of the occurrence she said that appellant had her on his lap, laid her on the grass beside him, and unbuttoned her panties. Further on, -she was aslied questions, to which objections were interposed, and no answers given, but in that connection she was asked, “State whether or not he put his hands under your clothes,” and she answered, “Yes.”

“Q. Now, then, where all did he put his hands? A. He put them around my waist and had them under my pants. Q. You know what your private parts are there, don’t you? A. Yes, sir.”

Several questions were then asked, to the form of which objections were made, and no answers given by the witness; and then the following question was asked: “Just state exactly where he put his hands. A. He put them about my privates.”

The authorities cited by appellant in support of his objection to these questions, all of which are contained in the one bill of exceptions, are applicable to the facts of their cases; but it is a well-known rule that, in cases of this character, witnesses are reluctant to describe fully the treatment they have received, and to mention freely those facts necessary in order to develop the case, and in such instances we have hesitated to override the large discretion of the trial courts in such matters. Especially is this true in the cases of children, whose tender years and lack of familiarity with courts would likely cause them to withhold evidence, unless their attention be called pertinently to the matters sought. Harris v. State, 37 Tex. Cr. R. 441, 36 S. W. 88; Campbell v. State, 62 Tex. Cr. R. 562, 138 S. W. 607; Graham v. State, 73 Tex. Cr. R. 31, 163 S. W. 726. We do not think this contention of appellant well founded.

Prosecrutrix testified that appellant came to her mother’s house some time after the alleged assault; that he drove up, and stopped his buggy and looked around. She was then asked as to where she was at that time, and stated, over objection, as follows: “We hid in the buggy shed.” A further question was asked as to where she was, and objection made thereto, which was overruled. Witness answered as follows: “In the buggy shed. We hid from him "because we were afraid of him.”

Upon what theory of the state this evidence was offered, we are unable to perceive. No such mental condition, or condition of excitement, or continuity of attitude of prose-cutrix, was shown from the time of the assault up to the giving of this testimony, which would justify its admission under the rule of res gestee. If it was admitted under the idea that it was in the nature of an outcry, for the prosecutrix to testify that the first time she saw appellant, she and the others with her, went and hid, because they were afraid, we would call attention to the Reddick Case, 35 Tex. App. 463, 34 S. W. 274, 60 Am. St. Rep. 56, in which this court held it improper to prove that prosecutrix fainted when she came into the preseneé of appellant, overruling the Bruce Case, 31 Tex. Cr. R. 590, 21 S. W. 681, in which it was held admissible to prove that the prosecutrix shuddered when she came into the presence of appellant. No other witness testified to this hiding and fear on the part of the pros-ecutrix, and there is nothing before us-which would show such evidence to be admissible.

By another bill, error is urged in the following matter: The state asked prosecutrix: “How close was his body to your body?” To which question the witness answered, “I was lying on the ground right by the side of him.” The bill of exceptions then contains the following: The district attorney then remarked: “When he got over on top of you — when ha got over you?” To this appellant objected, as suggestive, and the witness had not testified that he got over on top of her; that this case should be tried as any other; and that such questions were asked for the sole purpose of endeavoring to create prejudice in the minds of the 'jury. When this objection was made, it appears from the bill that the state’s attorney then said:

“I will state this, your honor; I am not doing this, and, Mr. Sheppard’s words to the contrary notwithstanding, it is not so for the purpose of creating any prejudice against the defendant, but I will state this, that he is raising objections here simply for the fact that he don’t want the truth to come out and he knows what I am after.”

This seems tantamount to a statement by the state’s attorney that the fact asked for by said question so objected to was the truth, and that counsel for appellant knew it, and did not want the truth to come out.

We have often held such statement of matters outside the record, when made by state’s attorneys, improper, and that, if the language be calculated to injure, we would not speculate ás to the amount of the injury. Derrick v. State, 80 Tex. Cr. R. 10, 187 S. W. 759; Marshall v. State, 76 Tex. Cr. R. 386, 175 S. W. 154; Sarli v. State, 80 Tex. Cr. R. 161, 189 S. W. 149; Kemper v. State, 63 Tex. Cr. R. 6, 138 S. W. 1025.

In view of the fact that this case will have to be reversed for the reasons mentioned, we forego a discussion of the sufficiency of the evidence.

The charge of the court was a substantial •presentation of the law as applied to the facts.

For the errors mentioned, the judgment of the trial court is reversed, and the cause remanded. 
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