
    ROGERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. Criminal Law (§ 366) — Evidence—Res Gestas.
    Qn a trial for assault with intent to rape, the testimony of third persons, as to complaints made by prosecutrix immediately after she had escaped from accused and had run to another part of the grounds where the offense was committed, was admissible as a part of the res gestae.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 819; Dec. Dig. § 366.]
    2. Witnesses (§ 414) — Corroboration.
    Where accused on trial for assault with intent to commit rape impeached prosecutrix, testimony of complaints by prosecutrix and of her condition immediately after she had escaped from accused was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dee. Dig. § 414.]
    3. Rape (§ 48) — Complaints by Prosecu-trix — Evidence—Admissibility.
    Recent complaints by prosecutrix and her appearance and condition of her clothing shortly after the alleged occurrence may be proved as original evidence, though not strictly res gestee.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 67-69; Dec. Dig. § 48.]
    4. Criminal Law (§ 455) — Evidence—Conclusion op Witness.
    A witness may state how a person appeared, though it is to some extent an opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1044; Dec. Dig. § 455.]
    5. Rape (§ 41) — Assault with Intent to Rape — Evidence — Admissibility — “Woman.”
    Where the indictment charged an assault with an intent to rape on a woman named, it was not error to permit prosecutrix to testify to her age and that she was just past 14 at the. time' of the offense; the word “woman,” under Pen. Code, 1895, art. 21, signifying a female person of any age.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 60; Dec. Dig. § 41.
    
    For other definitions, see Words and Phrases, vol. 8, p. 7513.]
    6. Rape (§ 53) — Assault with Intent to Rape — Evidence—Supficiency.
    Evidence held to support a conviction of assault with intent to rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 78-82; Dec. Dig. § 53.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Dave Rogers was convicted of crime, and he appeals.
    Affirmed.
    Crawford, Walker & Williams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   PRENDERGAST, J.

On July 2, 1910, appellant was indicted for an assault with intent to commit rape upon Florence Chick, a woman, on June 19, 1910, by force, threats, and fraud. He was tried on October 14, 1910, convicted, and his penalty assessed at five years in the penitentiary.

It is unnecessary to give any extended statement of the testimony. On Sunday evening June 19, 1910, the assaulted party, a young girl just then past 14 years of age, who lived a few blocks from the Fair Grounds in the city of Dallas, went from her home to the Fair Grounds with her little sister and brother, both younger than she, and with another young girl about her own age and two other younger girls. They went into the Fail* Grounds about the middle of the evening, to hear the music and for other purposes connected with the grounds. After being in the grounds some time, the appellant came to where she was and asked her where her father and mother and oldest brother were. She told him they were all at home. He then left her, stating he would be back later. Later he did come back with a companion, Jack Hill, to where she and the other children were. It was then late in the evening, not long before night, or perhaps nearing night. The testimony then tends to show that the appellant took hold of her and Jack Hill took or went with the other girl about her age all together some distance across the Fair Grounds; that the appellant, when the other children attempted to follow them and did follow them for some distance, ordered them to stop and go back. They first declined and still followed. After going some distance further, the appellant gave one of the children 25 cents, and in this way and by threats against them induced them to cease following and return whence they came. The appellant with the prosecuting witness, and Hill with the other girl, then proceeded to a portion of the Fair Grounds to the bear cage. After staying there some time, the prosecuting witness claiming that she was kept there by appellant by force, and, notwithstanding her crying and attempt to leave, by force he prevented her. Then about or after dark, he, by force, took her between two of the large horse stables. She testified that he then threw her down and pulled her panties off of her, then put his knee across her chest, unbuttoned his top pants, and started to undoing his under pants, when he told her to stand up, and she thereupon ran from and escaped him; that he ran after her then clear across the Fair Grounds to another portion thereof, where she met a policeman named Meeks, and later or about the same time another police officer named Stacy and some others apparently some of her girl companions.

The appellant did not testify. There was more of less testimony introduced tending to support the complaining witness in her testimony. There was some other testimony introduced by the appellant disputing various circumstances of her testimony, and he also introduced statements contradicting, or tending to contradict, her in various parts of her testimony. However, no testimony except her own was introduced as to the immediate assault upon her when she claimed the appellant took off her panties and unbuttoned his clothes. As soon as she reached the policeman, she made statements to him of what had occurred. She was then crying, very much excited, and her clothes more or less torn and soiled. She was then at once taken home by one of the policemen, made statements to him as he was taking her home, and as soon as she reached home she told her parents what had occurred. There are a great deal of the details of her testimony and of corroborating circumstances and statements by others and of contradictions of her unnecessary to give. No complaint whatever in any way is made as to the charge of the court. There are many exceptions to the introduction, and some to the exclusion, of testimony. We will take up, discuss, and decide the questions as they are presented in the brief of the appellant’s attorneys.

The first complaint is as to the admission of the testimony of the policeman Meeks; the mother of the prosecutrix; Stacy, a police officer; Trevathan; Annie Belle Kelley; and Goldy Ghitwood — as to giving the details of the assault upon her as related by her to them' as soon as she saw them after the claimed assault. We will give bill No. 8 as a sample of each of the others. After the proper heading, the bill is: “Be it remembered that upon the trial of the above-entitled and numbered cause, and while the state’s witness Policeman Meeks was upon the witness stand, and while he was testifying for the state when the state was introducing its evidence in chief, the said witness Policeman Meeks was permitted, over the objection of the defendant, to testify to the following facts, to wit: ‘It was about 7 o’clock when I 'saw Miss Chick, at the merry-go-round or hobby horse. She seemed to be excited in some way when I saw her — worried about something. She was crying, and her eyes were red; her breathing very short. She sobbed awhile, and then says: ‘Dave Rogers had me down here by the barns,’ and I ask her then what was the trouble, if she was hurt in any way, and she said she was, and I asked her what tore her dress, and I don’t know what she said, as I could not talk to her only at times. There was a crowd around there, and I could not ask questions like I would have liked to ask. She said that defendant had taken some of hdr underwear off of her (her panties), and I ask her if there was anything else, if she was hurt, and she said there was, and about that time (if I am allowed to state it) I wanted to get her away from the crowd and talk to her more secret, and I took her away to one side.’ ” The appellant objected to said testimony for these reasons : (a) Because it was purely and exclusively the opinion and conclusion of the witness; (b) it was purely hearsay; (c) it was not res gestee; (d) the statements made by the prosecutrix to the witness were too remote from the time and place of the alleged. assault, as testified to by prosecutrix, and as shown by the testimony in the record, to be of any probative value; (e) appellant was not present and could in no way be bound by her statements; (f) it was an attempt by the state to bolster up her evidence by the witness Meeks’ testimony; (g) by it the state placed before the jury all the details and minute cireumstan'ees, even connecting defendant by name with the offense charged; (h) said officer, Meeks, drew said statements from prosecutrix by questions to her and by insisting that she tell him everything about the transaction and persuading her to talk to him about the details and minute circumstances of the offense charged.

Bill No. 5, after making the same kind of preliminary statement as in the bill above copied, shows the state asked of the witness Meeks this question: “What did she tell you when you first saw her there at the merry-go-round or hobby horse?” Appellant then makes certain objections to this question and the answer thereto, but nothing like as extensive as the above objections. The court permitted the witness to testify substantially as in the previous bill shown.

The next bill shows, after making the same character of preliminary statement, this question was asked the witness Meeks by the state: ‘What was her (prosecutrix) condition when you first saw her there at the mqrry-go-round or hobby horse?” To which question the appellant then made substantially the same objections as shown to the previous questions and answers. The witness answered: “She seemed to be excited in some way when I saw her — worried about something.”

The next bill, after making the same kind of preliminary statement, shows that this question was asked the witness Meeks by the state: “State how her breathing was?” The same character of objection was made to this as to the others. He was permitted to answer: “She was crying, her eyes were red, and her breathing was very short.”

The court, in approving these several bills, did so with this explanation: “The matters mentioned in ’this bill * * * occurred immediately after the little girl had got back from the trip where she states she was assaulted while she was still on the Pair Grounds, still sobbing and breathing short. X admitted this as a part of the res gestae.”

Many years ago the rules by this court as to what hills of exceptions shall show were established and enforced. They are particularly and clearly stated by Judge White in his Annotated C. G. P. on page 732, § 1123, and section 857, p. 557. We- have many times in more recent decisions called attention to them. Conger v. State, 140 S. W. 1121, 1122. None of them have been made by this court recently. Notwithstanding the insufficiency of these bills in all of the particulars required by the rules, we have considered the various questions attempted to be raised thereby. All of this testimony and that of like character shown by the other bills herein was clearly admissible on two if not other grounds: First, because the testimony was res gestas. Castillo v. State, 31 Tex. Cr. R. 150, 19 S. W. 892, 37 Am. St. Rep. 794; Sentell v. State, 34 Tex. Cr. R. 260, 30 S. W. 226; Wells v. State, 43 Tex. Cr. R. 453, 67 S. W. 1020; Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882; Thomas v. State, 47 Tex. Cr. R. 535, 84 S. W. 823, 122 Am. St. Rep. 712; Turman v. State, 50 Tex. Cr. R. 10, 95 S. W. 533; Berry v. State, 44 Tex. Cr. R. 397, 72 S. W. 170; Lights v. State, 21 Tex. App. 314, 17 S. W. 428; Kenney v. State, 79 S. W. 817, 65 L. R. A. 316; Lemons v. State, 59 Tex. Cr. R. 299, 128 S. W. 421; Ramsey v. State, 63 S. W. 876. Second, because of the impeachment or attempted impeachment of the testimony of the prosecuting witness. Many of the cases above cited sustain the introduction of this evidence on this ground. See Branch’s Crim. Law, § 874, for collation of further authorities on this point.

It is also well established by the decisions of this court and the text-books that recent complaint by prosecutrix, her state and appearance, marks of violence, and the condition of her clothing shortly after the alleged occurrence, even though not strictly res gestee, may be proved as original evidence. Pefferling v. State, 40 Tex. 486; Lawson v. State, 17 Tex. App. 303; Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274, 60 Am. St. Rep. 56; Roberson v. State, 49 S. W. 398; Lights v. State, supra; Holst v. State, 23 Tex. App. 7, 3 S. W. 757, 59 Am. Rep. 770; Grimmett v. State, 22 Tex. App. 41, 2 S. W. 631, 58 Am. Rep. 630, and many other cases might be cited.

It is also well established that a witness can state, which is a shorthand, rendering of the facts, how a party appeared, his condition, etc., even though it might be deemed, to some extent, the opinion of the witness such as was complained of in this case by several of the bills in speaking of the prosecutrix, that: “She was crying and go-' ing on.” “She seemed to be excited in some way — worried about something.” “She was crying, her eyes were red, and her breathing was very short” — and such like testimony. See Branch’s Criminal Law, § 347, for some of the authorities on this point.

It is unnecessary to take up and discuss any of the other bills as to the testimony of these several witnesses, because they present substantially the same thing and are attempted to be raised in substantially the same way.

Another complaint by appellant is that the court erred in refusing to sustain his general demurrer to the testimony after the state had rested, because the evidence was insufficient to sustain the conviction, and because, as we understand, that the state was permitted over his objections to prove by the prosecuting witness her age, to wit, just past 14 years of age at the time of the alleged offense.

The indictment charged that the assault was committed on Florence Ohick, a woman. The statute (P. O. art. 21) expressly provides that the word “woman” signifies a female person of any age. Even, without this, it clearly would not have been error to have permitted the state to prove the age of the prosecuting witness.

The evidence introduced by the state fully authorized the jury to convict appellant if they believed the testimony of the state. There was no error in the court’s refusal to sustain appellant’s demurrer to the sufficiency of the evidence and on that account instruct a verdict of acquittal.

There are some other questions attempted to be raised by the motion for new trial, but they are not presented by appellant’s brief. We have carefully gone over all of them. It is unnecessary to state or discuss them. None of them present any error. The testimony in the case is amply sufficient to sustain the verdict.

The judgment will be affirmed.  