
    GRACE v. STATE.
    (No. 6305.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.
    Rehearing Denied Nov. 23, 1921.)
    I.Criminal law <&wkey;>l34(l) — Evidence held Insufficient to authorize change' of venue on ground of local prejudice.
    On motion for change of venue, evidence, consisting of newspaper accounts of the crime charged and conflicting testimony of residents of the county, held insufficient to show such widespread local prejudice as would prevent defendant from getting a fair and impartial trial in such county.
    2. Criminal law <&wkey;>l34( I) — Where satisfactory jury obtained, that only four jurors were obtained from first venire held not indicative of prejudice requiring change of venue.
    Where only, 29 of 160 special veniremen summoned were excused because they had opinions or were biased or prejudiced, and defendant challenged only 7 peremptorily, and from a second venire a jury, apparently not objectionable to defendant, was completed after actual examination of 250 men in the two venires, the fact that only 4 jurors were obtained from the first venire did not show the existence of such prejudice against defendant as to require a change of venue.
    3. Criminal law <s&wkey;78l (5) — Issue as to whether accused’s confession was voluntary properly submitted to jury.
    In a criminal prosecution, where the evidence was conflicting as to whether defendant’s confession was freely and voluntarily made, the court properly submitted the issue to the jury, instructing them that if they entertained a reasonable doubt they should not consider such confession.
    4. Witnesses <&wkey;389 — False statement by defendant’s mother as to his whereabouts the morning after, the crime held admissible for impeachment.
    In a prosecution for rape, where defendant’s mother denied that she stated to a police officer the morning after the night of the crime that her son was not at home, but in another city with his father, which was not true, testimony of such officer that she did so state was admissible to impeach her; defendant’s presence in the city wherein the crime was committed, at the time of such statement being material.
    5. Witnesses <&wkey;>388(5), 389 — Prior statements of character witness as to contrary, views expressed by others competent to impeach him after his denial.
    In a prosecution for a negro for raping a white woman, there was no error in asking a character witness for defendant, as a predicate, if he had not told a police officer that the hands at witness’ place with whom defendant associated were always teasing him about chasing white women, nor, the witness answering in the negative, in allowing such officer to testify that he did so state, the weight of the witness’ testimony as to defendant’s good reputation and conduct toward white people and his disposition, which were material, being affected by testimony that others associated with defendant were known by the witness to have expressed contrary views.
    6. Rape &wkey;>36, 43(2), 48(1) — State has burden of proof; testimony as to immediate complaint and condition of prosecutrix’s clothing held admissible.
    In a prosecution for rape, testimony that prosecutrix went at once to her nearest neighbor and made complaint, and that she and her dothing were bloody, was admissible, within the law regarding recent complaint and the condition of the female’s clothing soon after the assault, though the defense was alibi; the burden being on the state to show the rape was committed in the manner alleged, of which complaint, made immediately afterward, is original evidence.
    7. Criminal law <&wkey;>825(2) — Rape &wkey;e59(4)~ Instruction as to sufficiency of threats held sufficient; further instructions must be requested.
    In a prosecution for rape by threats, an instruction that the threats must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength, and other circumstances, sufficiently instructed the jury as to the character of threats which would be sufficient, and, if defendant desired further instruction as to the influence exerted on prosecutrix’s mind by such threats, he should have ashed special charges presenting such issue.
    8. Rape <&wkey;35(4) — Immaterial that threats aione are alleged, but violence and1 threats proved.
    In a prosecution for rape by threats, where prosecutrix stated fully the threats made by defendant, though she did not say in words that he accomplished his purpose thereby, the fact that such threats were accompanied by violence would not affect the validity of the proceeding, nor the sufficiency of the evidence to support the verdict, since rape may be by force or threats, or both, and, when only one is alleged and both proven, the court will not speculate as to whether the fear resulting from threats alone drove the victim to submission or as to the extent to which violence contributed to that end.
    9. Rape <&wkey;57(I) — 'Whether crime was committed is for jury.
    In a prosecution for rape, whether the crime charged was committed is a question for the jury.
    10. Rape &wkey;>57(2) — Identity of accused a question for jury.
    The identity of accused as the party who committed the rape charged is for the jury.
    11. Rape <&wkey;57 (I) — Accused’s character a jury question.
    In a rape prosecution, the character of accused is for the jury.
    12. Criminal law <&wkey;739(2) — -Truth of alibi a question for jury.
    In a criminal prosecution, the truth of defendant’s plea of alibi is for the jury.
    Appeal from District Covyrt, Bexar County; W. S. Anderson, Judge.
    George McKinley Grace was convicted of rape, and he appeals.
    Affirmed,
    W. C. Linden, of San Antonio, for appellant.
    D. A. McAskill, Dist. Atty., and W. S. Anthony, Asst. Dist. Atty., both of San Antonio, C. M. Cureton, Atty. Gen., and E. P. Smith, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the Thirty-seventh district court of Bexar county of rape, and his punishment fixed at death.

This is the second appeal. See 225 S. W. 751. Appellant was given the death sentence upon his former trial.

A change of venue was asked in this case. By proper affidavit the state attacked the means of knowledge of the compurgators whose signatures were attached to appellant’s motion for such change. Upon the issue thus joined the trial court heard a great deal of evidence, of such length as to render a reproduction of any considerable portion thereof impossible in this opinion. More than 40 witnesses testified, and their testimony covers about 150 pages of the record. The range of said testimony was very wide. A large number of newspaper accounts of the various stages of the progress of the case from its inception down to the present time were incorporated in the record. We have examined these, as well as the testimony of the various witnesses on the stand. Many of the newspaper articles appear to be a fair statement of the facts as they transpired, and are not inflammatory or apparently written for the purpose of creating any prejudice against the accused. It 'is not to be presumed that a fair-minded citizenship will necessarily become so prejudiced against one accused of crime, by simply reading fair accounts of the matter in the newspaper, as to result in the creation and existence of that prejudice which is contemplated by our statute as requiring a -removal of the cause from the county in which same is pending. It was shown by the record that Bexar county has a population subject to jury service of approximately 25,000 persons, and while some of the witnesses testified to having heard expressions unfavorable to appellant, our examination leads us to conclude that the number of persons heard to make such prejudiced statements was not very considerable. We find in the record the testimony of a number of witnesses introduced by appellant himself who testified that the expressions they had heard were about evenly divided between favorable and unfavorable, and almost none of the witnesses testified that they believed from their knowledge of the citizenship of' the county that appellant could not get a fair and impartial trial. In fact most of the witnesses testified to the contrary. Appellant is a negro, and the record contains the testimony of a number of negroes who testified that they believed he could get a fair and impartial trial in Bexar county. It was shown that the population of Bexar county was exceedingly cosmopolitan in character, and that in addition to a large number of negroes there was a great class of citizenship which entertained no prejudice against colored people. The trial court heard said evidence, and, in accordance with the duty imposed upon him by statute, came to a decision regarding same; and, unless we are led to believe that his action was against what would appear to be just and right-in the premises, it would be our duty to uphold his action. We are unable to conclude that there was such evidence before the court below as should have induced him to conclude differently from the judgment entered by him in overruling said motion.

The special venire summoned was exhausted without obtaining a jury, and thereupon appellant filed a supplemental motion for a change of venue, which was based upon what occurred in passing upon said first venire. We have examined this motion and the evidence supporting it, consisting of a stenographic statement of the results as to each venireman. Said first venire consisted of 200 men, only 160 of whom were summoned by the sheriff. Thirty of these seem to have been excused by the parties, probably before the trial actually began. In examining the venire 23 of them had conscientious scruples and were excused; eleven were excused on account of sickness; 9 failed to answer when their names were called; 11 were excused because of inability to understand the English language; some could not read and write; 13 were excused because the wrong name appeared in the venire list; 22 had opinions about the case; and 7 were excused by the court because of their bias or prejudice. Of said veniremen the state challenged 4 and appellant 7, peremptorily. Four jurors were obtained.

Instead of this result leading us to conclude that it showed the existence of that character of prejudice against appellant for which a change of venue should be granted, we are constrained to the opposite belief. After overruling said supplemental motion, a second venire of 200 men were ordered, 74 of whom were not reached in the examination. As far as we are able to learn from the record before us the jury was completed without any man being forced upon the accused who was objectionable to him. There is no bill of exceptions in the record showing that when the jury was in process of completion, any person was forced upon appellant over his objection. A review of the entire history of the two venires present and summoned in the course of the selection of a jury in this case on the instant trial shows that out of 250 men who actually were examined before the court a jury was secured apparently not objectionable to appellant. We do not believe the record shows such condition as would justify any conclusion of injury to appellant from being put to trial before a jury in Bexar county. We do not think any reason appears why the court should not have overruled either the original or supplemental motion for change of venue.

The state introduced against appellant his written confession. The bill of exceptions reserved by appellant to this action covers more than 30 typewritten pages. Said objections appear to be that said confession was not freely and voluntarily made by appellant after being warned. We cannot reproduce the evidence, but it appeared to be almost entirely in favor of the proposition that said confession was freely and voluntarily made. Appellant himself testified at length and to the contrary to this view. In such case of contest the proper practice in this state seems to be to submit to the jury the voluntary character of such confession instructing them that if they entertain a reasonable doubt as to whether said confession was freely and voluntarily made, they will not consider same. This was done in the instant case, and three special charges, prepared by appellant’s counsel, were given to the jury covering various phases of said question.

Appellant’s third bill of exceptions relates to the fact that when his mother was testifying in his behalf she was asked if the first officer who talked to her on the morning of appellant’s arrest, sam'e being the morning after the night of the alleged rape, did not ask her, “Where is your son that goes to work at the Katy Railroad at 8 o’clock, and leaves at 4? ” and if she did not reply, “He is not here; he is in Beaumont with his father.” It is stated in the bill of exceptions that when the court overruled appellant’s objection to the above question, the witness answered, “I did not say that; positively did not.” This ends the bill of exceptions. Thereafter the state placed upon the witness stand Officer Perow, who stated over objection that he did ask appellant’s mother the question above set out, and that she said to him that said boy was in Beaumont with his father. We think this evidence admissible for the purpose of impeachment. The presence of appellant in San Antonio at the time the inquiry was made was a material matter, and, his mother being a witness, it was competent to impeach her by proof of said statement.

Appellant’s bill of exceptions No. .4 complains of a question to defense witness Ellison said question being in effect if witness had not told Officer Perow that the hands at witness’ place with whom appellant associated were always teasing him' about chasing white women. There was no error in allowing the asking of this question as a predicate. The witness answered in the negative. The trial court did not err in allowing Officer Perow to testify that defense witness Ellison did so state. The fact inquired about was not immaterial. Ellison was a witness on behalf of appellant, and was subject to attack by contradictory proof of any material matter. Appellant’s good reputation and his conduct toward white people, and his disposition, were the matters about which witness Ellison testified affirmatively in behalf of appellant. Appellant’s good reputation was necessarily based on what others said of him. Ellison testified that he had observed-appellant’s conduct toward whites, and he was willing to swear it was good. The weight of this testimony would be affected if it could be shown that other persons who were associated with appellant at the same time and place at which he was working for witness Ellison were known to Ellison to entertain views contrary to those embodied in his testimony and had expressed them to said witness. If the matter referred to about which appellant’s associates were teasing him was shown to have been jocular, such explanation could have been made. Appellant had a right to have the effect of said testimony of- Officer Perow limited to the question of affecting the credibility of witness Ellison, but he did not see fit to do this. We think no injury shown.

That Mrs. Howard, .prosecutrix, went at once to her nearest neighbor, who lived but a few feet from the home of prosecutrix, and made complaint, and that she and her clothing were bloody, appears well within the settled law regarding recent complaint and the condition of the clothing of the assaulted female soon after the alleged assault. Duke v. State, 35 Tex. Cr. R. 283, 33 S. W. 349; Dawson v. State, 17 Tex. App. 292; Holst v. State, 23 Tex. App. 1, 3 S. W. 757, 59 Am. Rep. 770; Sentell v. State, 34 Tex. Cr. R. 260, 30 S. W. 226. That the defense interposed was alibi would not make such facts inadmissible. The burden is on the state to show that the rape was committed in the manner alleged and complaint made immediately afterward, is held to be original evidence. Burge v. State, 73 Tex. Cr. R. 505, 167 S. W. 63; Rogers v. State, 65 Tex. Cr. R. 105, 143 S. W. 631.

The indictm'ent charged rape by threats, and this issue only was submitted to the jury. There was an exception taken to the form in which said issue was submitted. That portion of the charge directly relative to said issue was as follows:

“In this case the indictment charges rape by threats, and I charge you that threats, within the meaning of this statute, must be such as might reasonably créate a just fear of death, or great bodily harm, in view of the relative condition of the parties as to health, strength, and other circumstances of the case.
“To constitute the offense of rape by threats, therefore, it must appear that the defendant ha'd unlawfully assaulted the injured female, and by means of threats as above defined violently ravishe’d and had carnal knowledge of her without her 'consent and against her will, and, further, penetration of the sexual organ of the female alleged to have been ravished by the male organ of the party accused must be proved beyond a reasonable doubt.
“The penalty prescribed by statute for the offense of rape is death or confinement in the penitentiary for life, or for any term of years not less than five, in the discretion of the jury. Accordingly you are instructed that if you believe from the evidence, beyond a reasonable doubt, that the defendant did, as charged in the indictment, on or about the 24th day of February, 1920, in the county of Bexar and state of Texas, make an assault in and upon the said Ruth Esther Howard, a woman, she not then and there being the wife of the defendant,' and did then and there by means of threats, violently ravish and have carnal knowledge of her, the said Ruth Esther Howard, without her consent and against her will, you will find the defendant guilty as charged, and assess his punishment at death, or at confinement in the penitentiary for life, or, in your discretion, at such confinement for any term of years not less than five.”

Appellant’s contention that this fails to instruct the jury as to the character of threats which would be sufficient does not seem sound in view of the above quotation from the charge. If appellant desired further instruction as to the influence exerted upon the mind of prosecutrix at the time of the alleged rape, by the threats in evidence, he should have asked special charges presenting such issue. We do not think the fact that the threats were accompanied by violence would affect the validity of the proceeding, nor the support of the verdict by the evidence. Abundant evidence of threats appears in the record; and, while the prose-cutrix did not say in words that appellant accomplished his purpose by threats, she does state fully the threats made by him when he came to her house and during the time he was there, and does say that just before he accomplished his purpose he told her if she holloed again he would kill her and her baby both. Rape may be by force or threats, or both, and when only one is alleged and both are proven, and beyond question contributed to the ravishment, this court will not indulge in hairsplitting speculation as to whether the fear and intimidation resulting from! threats alone drove the victim to submission, or as to the extent to which violence may have contributed to that end.

This disposes of the contention made on behalf of appellant. That Mrs. Howard was brutally assaulted and ravished seems beyond question. Her identification of appellant as the party who committed the rape was positive. Appellant’s confession was equally as positive and fully admitted Ms guilt. True, he denied the voluntary character of this confession, but that question was one presented to the jury with instructions that they should not consider said confession if it was not freely and voluntarily made, or in the event they had a reasonable doubt as to such being its character, far as we are able to determine all those safeguards necessary to a fair and impartial trial which have been evolved by the experience of the courts seem to have been present on the instant trial and granted to appellant. His good character was proven. His alibi was also as complete as his relatives could make it. A Bertillon expert, who took an impression of a finger print on the bed of prosecutrix, and compared same with that of appellant, said they were not made by the same person. These were all matters for the jury, and have been by them resolved against appellant. As

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

On account of the extreme penalty having been inflicted in this case, we have again examined the record and the authorities cited in appellant’s brief and referred to in his motion for rehearing. We regret that we have been unable to reach the conclusion so ably contended for by counsel. The views expressed in our original opinion were arrived at after careful consideration because of the severe penalty fixed by the jury. To write at length on the motion would amount to nothing more than an expression in different words of the same conclusions.

The facts alleged in the motion cannot be considered by us. Pye v. State, 71 Tex. Cr. R. 94, 154 S. W. 222.

The motion is overruled. 
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