
    TINKER v. STATE.
    (No. 8467.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1925.
    Rehearing Denied March 4, 1925.)
    1. Criminal law <@=>614(1) — Continuance sought on retrial not first application for continuance, where one was sought on former trial.
    Continuance sought by defendant on retrial after reversal of conviction on former trial held not a first request for continuance within meaning of Code Cr. Proc. 1911, art. 608, where continuance had been sought and overruled at former trial.
    2. Criminal law <@=>614(1) — Second application for continuance fatally defective for failure to aver testimony unobtainable elsewhere.
    Under Code Cr. Proc. 1911, art. 609, second application for continuance held fatally defective for failure to aver that testimony was not obtainable from other source.
    3'. Criminal law <§=>965 — Violation of “rule” under which witnesses placed does not render evidence incompetent on subsequent trial.
    Where, on former trial for- rape, state suffered reversal for violating “rule” under which witnesses were placed by court, state held not debarred on second trial from using evidence discovered by such violation.
    4. Rape <©=>38 (3) — Finding of pair of drawers in room held admissible as corroborative-of prosecutrix.
    Testimony of proprietress, at whose hotel prosecutrix and defendant spent night, that pair of drawers were left in room held admissible over objection of lack of identification, as being corroborative of prosecutrix’s testimony that she left them.
    5. Criminal law <§=>361 (I) — Evidence of purchase of whisky by malo companion of defendant held admissible.
    Evidence that companion of defendant purchased some whisky and that all, including prosecutrix, drank thereof held admissible as explanatory of indistinct memory of prosecu-trix as to occurrences at hotel where transaction occurred.
    6. Witnesses <§=>388(2) — Impeaching evidence properly excluded for lack of proper predicate.
    Testimony that prosecutrix in witness’ presence denied that defendant had or attempted to have intercourse with her, which testimony was variant from her testimony at trial held properly excluded, where no proper predicate was laid.
    7. Witnesses <@=>389 — Impeaching statements properly excluded where witness admitted making them.
    Testimony that prosecutrix in witness’ presence denied that defendant had or attempted to have intercourse with her, which testimony was variant from her testimony on trial, - held properly excluded where witness had admitted making statements in question.
    8. Criminal law <@=361 (I) — Evidence of threats of defendant or his companion to obtain secrecy held admissible.
    Testimony, of prosecutrix and her sister that either defendant or his male companion threatened to kill them or send their father back to penitentiary, if they told of improper relations between them, held admissible as explanatory of girls’ first story, in which they denied improper relations irrespective of which one made threat.
    9. Criminal law <§=>421 (3) — Scholastic census roll held admissible to show age of prosecu-trix, where mother dead.
    Scholastic census roll or testimony by taker thereof as to age of prosecutrix for statutory rape held properly admitted as exception to hearsay rule, where mother, from whom census information was obtained, was dead.
    10. Witnesses <@>=255(2) — Witness may refresh memory from data known by -him to have been correct when made.
    Census taker, testifying as to age of prose-cutrix for statutory rape, may refresh his memory from scholastic census roll which he knew to be correct when taken, though he have no independent recollection of fact.
    11. Criminal law <§=>429(1) — Census roil admissible as public records on issue of age of prosecutrix.
    Scholastic census roll, being required by Rev. St. 1911, arts. 2774-2776, to be taken and sworn to by taker, held to be admissible as public record, on issue of age of prosecutrix for statutory rape.
    12. Criminal law <§=>448 (2)— Prosecutrix’s testimony as to penetration held not opinion or conclusion.
    Prosecutrix’s testimony as to penetration held not objectionable as being her opinion or conclusion.
    13. Rape <§=59(28,21) — Assault with intent and aggravated assault held under circumstances properly omitted from charge.
    Where defendant denied transaction in toto, but contended that evidence of state raised issues of assault with intent and aggravated assault, such issues held properly omitted from charge in view of testimony of prosecutrix as to penetration and court’s instruction to acquit-in event of disbelief thereof.
    On Motion for Rehearing.
    14. Rape <§=57(5) — Evidence held not to require submission of issue of assault with intent.
    Evidence held not to require submission of issue of assault with intent to rape.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Ennis Tinker was convicted of statutory rape, and he appeals.
    Affirmed.
    I. N. Williams, of Mount Pleasant, C. R. Newland, of Linden, and B. B. Sturgeon, of Paris, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appeal is from a conviction for rape upon Maggie Ray, who is alleged to have been under 15 years of age. The punishment is five years in the penitentiary.

It is claimed by the state that one Adams and appellant took Naomi Ray and Maggie Ray from their home in Mount' Pleasant in an automobile to Atlanta, where they spent the night in a hotel, all occupying the same room, that Adams had intercourse on this occasion with Naomi, and appellant with Maggie; both girls being under 15 years of age. We think it unnecessary to here set out more in detail the evidence. A former judgment of conviction against appellant was reversed; the opinion being reported in 95 Tex. Cr. R. 143, 253 S. W. 531. Adams’ Case is reported in 95 Tex. Cr. R. 226, 252 S. W. 797. Reference is made to both cases for additional facts.

Appellant complains at the action of the court in refusing what he terms a “first” application for continuance. The record shows that a continuance was sought by him when the case was tried at a former term but was overruled; that the judgment of conviction then secured was reversed. Appellant seems to proceed upon the theory that, the present application being the first one presented since the reversal, it should be regarded as a “first” request for continuance under the statute. Article 608, C. C. P. His view of the matter is in conflict with the former holdings of this court. Bice v. State, 55 Tex. Cr. R. 529, 117 S. W. 163; Miller v. State, 42 Tex. Cr. R. 383, 60 S. W. 673. The application, being a “second” request for continuance, is fatally defective in omitting to aver that the testimony expected from the absent witnesses could not be procured from any other source known to appellant. See subd. 1, art. 609, C. C. P. Many eases are collated in Branch’s Ann. P. C. § 310, holding that an application for continuance must contain every statutory requisite, especially if it is a subsequent application.

At the former trial of this case the representative of the state in violation of the “rule” as to witnesses which had been invoked, conferred with Naomi Ray and Maggie Ray together, after which conference both girls testified to the bloody and sticky condition of the private parts of Maggie Ray on the morning after the alleged offense. Because of the violation of the rule the judgment of conviction was reversed upon the former appeal. Upon the present trial appellant sought to have the court instruct the district attorney to refrain from asking either of said witnesses about the ccjndition of the private parts of Maggie Ray the next morning after they spent the night with Adams and appellant at the hotel in Atlanta. The refusal of the court to comply with such request is made the basis of complaint. There is no pretense that any violation of the rule occurred on the present trial. The state suffered the penalty of a reversal for violating the “rule” upon the former trial for the reasons fully set out in the opinion on rehearing. See 95 Tex. Cr. R. 143, 253 S. W. 531. The position of appellant seems to be that, if the state is apprised of evidence in a conference with witnesses had in violation of an order of the court placing them under the “rule,” then the state should be permanently debarred from using such evidence even on a subsequent trial. We have been referred to no authority sustaining such a proposition, and the contention does not appep to us as being sound.

Mrs. J. P. Carnahan was the proprietress of the hotel in Atlanta at which the parties spent the night. The state reproduced her evidence given at the former trial. Appellant objected to that part of her testimony in which she stated that the next morning after the four parties occupied the room she personally cleaned it, and found therein a “little pair of panties, a small pair of drawers of a child”; the objection urged being that there was no identification of the article in question. We think the objection without merit. Prosecutrix testified that she was wearing drawers when she went to hed, and that she had none on the next morning, they having been removed during the night, presumably by appellant; that she left the hotel next morning without having put them on again. Mrs. Carnahan’s evidence was properly received as corroborative of prosecutrix.

Complaint is again urged, because the state proved that while on the way to Atlanta Adams secured some whisky. It is shown that all parties drank of the whisky, and the prosecutrix, Maggie Ray, says the reason her memory was indistinct about the things which occurred when they first went to the hotel at Atlanta was because she was under the influence of the liquor. Our reasons for holding such evidence properly admissible were fully set out in the opinion on the former appeal, and in the companion case of Adams v. State. We entertain no doubt that our views then expressed were correct.

Appellant offered H. L. Thompson as a witness who would have testified that prosecutrix made a statement in his presence, denying that appellant had, or attempted to have, intercourse with her in the hotel at Atlanta, which statement was at variance with her testimony on the trial. The court qualifies the bill, stating that no predicate had been laid for such impeaching evidence, and further that, when testifying, prosecutrix admitted having made all of the statements attributed to her by said Thompson. As thus explained, the bill is without merit.

It appears from the record that the father of Naomi and Maggie Ray had been sent to the penitentiary for some offense, but was out on parole at the time of the alleged rape of Naomi by Adams and of Maggie by appellant. Maggie testified that after they reached Texarkana the next day after the night spent at Atlanta all four of them went to a rooming house, and that appellant and Adams both told her there if the officers caught them not to tell anything, that “they would kill us if we told anything, and would send our daddy back to the penitentiary.” Naomi testified that, while they were all in the room at Texarkana, Adams, in the presence and hearing of appellant, told witness “if the ‘cops’ picked them up to, tell that they all had got two rooms, and we slept in one and the men slept in another room, and told us what to say if they caught us, and told us that he would kill us and send our daddy back to the ‘pen’ if we didn’t tell it like he said,” that Adams was doing the talking and appellant was listening. The objections urged to this testimony are entirely without merit. It was explanatory of the reasons for the story first told by the girls, in which they denied that Adams and appellant had been guilty of improper conduct with them. If appellant used the language attributed to him by Maggie it was a direct effort by him to suppress information of the alleged offense; if Adams was doing the talking in appellant’s presence it was with the same purpose in view, and to the end of protecting both of them. See Adams v. State, 95 Tex. Cr. R. 226, 252 S. W. 797.

D. P. Sims was permitted to testify that he was scholastic census taker for, the years 1917 and 1918, and as such took the census of the Ray family for both of said years, the information as to the age of Maggie Ray being given him by the mother; that separate cards were used for each family ; that from the cards witness made a consolidated roll, showing the ages of the children as it appeared on the cards; that the original cards were turned over to the county school superintendent, but had been lost in moving the office. The evidence showed proper search for them where they should have been kept. Witness had with him in court the consolidated roll made by him from the cards. He testified that he thought he put the ages down correctly as given by Mrs. Ray, and had correctly transferred it to the consolidated rolls, but that he was only human and made mistakes sometimes. He had no independent recollection of what Mrs. Ray told him as to Maggie’s age, and could only go by the record. The bill recites that, over the objection that it was hearsay, the state was permitted “to introduce in evidence the consolidated rolls for 1917 and 1918, which showed Maggie Ray in 1917 to be 7 years of age, and in 1918 to be 8 years of age.” The court’s qualification to the bill is to the effect that the witness refreshed his memory from the consolidated roll, or register, and then testified as to what Mrs. Ray told him concerning the child’s age. In either event we think no error occurred. The mother of prosecutrix, Mrs. Ray, was dead. It is unquestioned that Mr. Sims secured the information forming the basis of the data from the mother of prosecutrix. The mother having died, her statements made as to the age of prosecutrix, appear to be admissible upon that issue as an exception to the rule against hearsay evidence. Donley v. State, 44 Tex. Cr. R. 428, 71 S. W. 958; Nunn v. Mayes, 9 Tex. Civ. App. 366, 30 S. W. 479; Tull v. State (Tex. Cr. App.) 55 S. W. 61; Sheppard v. State, 56 Tex. Cr. R. 604, 120 S. W. 446; Sorell v. State, 74 Tex. Cr. R. 100, 167 S. W. 356. It also seems to be well established that, if a witness has no present recollection of the facts, if he is able to refer to data which he knows was correct at the time it was made, the data may be used to prove the fact, even though at the time of the trial the witness has no independent recollection of the fact. Kimbrough v. State, 28 Tex. App. 367, 13 S. W. 218; Stringfellow v. State, 42 Tex. Cr. R. 588, 61 S. W. 719; Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796; Misher v. State, 69 Tex. Cr. R. 223, 152 S. W. 1049; Putman v. United States, 162 U. S. 687, 16 Sup. Ct. 923, 40. L. Ed. 1118. We would further call attention to articles 2774 and 2775, R. O. S., which requires the scholastic census to he taken, and also requires the census taker “to make a summary of his rolls, showing the number of children of each race that will be of the different ages over 7 and under 17, etc.” He is required to make oath as to the accurate discharge of his duties, and deliver the rolls to the county superintendent. It is made the duty of the latter -(article 2776, R. C. S.) to preserve the rolls in his office. It will be seen that these become public records by statutory enactment; the census being taken at the command of the law itself. We quote from section 310k, vol. 1, p. 603, Wharton's Or. Ev., relative to such records:

“As we have seen, courts take judicial knowledge of the census authorized by the laws of the state or the United States; certified copies of census returns of the federal government are admissible in evidence upon the question of the age of a citizen deceased since the return was made. So, under statutes, these documents, being official registers, are admissible in evidence in so far as they contain statements which the law requires should be-inquired into, reported upon, and then recorded, on the ground that examination of such statutes will disclose that as to each census the enumerator was required by the law itself, and not merely by the direction of his superior officer, to investigate and record the particular matters which are shown in the abstract for that census, and that this investigation was to be made, where practicable, by inquiry from the head of the household in question. These records therefore are not simply public records, made for the express purpose of ascertaining and preserving proof of the facts there contained, but are records made by an officer, under his official oath, of declarations as to matters of pedigree, by persons whose declarations are competent proof upon that subject.”

Mr. Wharton collates in notes under the section referred to many authorities supporting it. See, also, vol. 9, Am. & Eng. Ency. Law. (2d Ed.) p. 883. In volume 3, § 1671, Wigmore, is found this statement:

“If by special authority a local census is taken for the express purpose of registering individuals it would become admissible.”

See Newman v. Doe, 4 How. (Miss.) 522, 554. The subject is considered at length in Priddy v. Boice, a Missouri case reported in 201 Mo. 309, 99 S. W. 1055, and in 9 L. R. A. (N. S.) 718, 119 Am. St. Rep. 762, 9 Ann. Cas. 874. In line with the quotation from Wharton is Greenleaf on Evidence (13th Ed.) §§ 483 and 484. The principle relative to proof of age by census reports and other records of birth required by law to be kept is not without recognition in our own court. See Ford v. State, 82 Tex. Cr. R. 639, 200 S. W. 841; Mireles v. State, 83 Tex. Cr. R. 608, 204 S. W. 861. The record in the present case showing affirmatively that the mother of prosecutrix could not be called as a witness because of her death prior to the trial, we perceive no error upon the part of the learned trial judge relative to Mr. Sims’ evidence, nor as to the census records made from information furnished him by her as to prosecutrix’s age.

Upon examination in chief, Maggie Ray testified as follows:

“I know what is meant by a man’s private parts and my private parts. He [appellant] put his private .parts to mine,- and he started to put his private parts into my private parts and it hurt and I woke up; he started to and I woke up. I don’t know — I don’t remember how far he got his private parts into mine; it hurt me; I don’t know how long he was trying to get his private parts into mine, but I woke up as quick as it commenced to hurt me. I know what is meant by having intercourse, and he had intercourse with me that night.”

The witness was not cross-examined as to intercourse or penetration. The district attorney later recalled the witness and asked her if she knew what penetration of the female organ by the male organ was, to which she replied in th,e affirmative, and then testified that appellant penetrated her female organ on the night in question with his male organ. There is no merit in the objection urged to the evidence given by said witness when recalled that it was her “opinion and conclusion.” It appears to be a. “fact” to which she was testifying, and one which she was certainly in a position; to have knowledge of.

We would not have set out the foregoing evidence if it had not been pertinent to complaints relative to the charge to which we now refer. The charge was excepted to because it contained no instruction upon assault with intent to rape or upon aggravated assault, and special charges upon these subjects were requested and refused. The complaints are brought forward in bills Nos. II, 12, 13, and 14. Appellant denied in toto any improper conduct towards prosecutrix. He averred that he did not have intercourse with her, nor attempt to do so, nor do anything upon which a charge of aggravated assault could be predicated. It is appellant’s contention that the evidence of the state raised the issues. It was the opinion of the learned trial judge as reflected in his explanation to bill of exception No. 11 that the evidence of prosecutrix as heretofore detailed, if believed by the jury, showed complete penetration, hence making out the offense of rape; on the other hand, if the jury did not accept her story as true, that appellant was entitled to an acquittal. He instructed the jury to this effect. After a careful examination of all the facts in evidence, we are in accord with the view of the trial court, and think no error was committed in omitting to charge upon assault with intent to rape and aggravated assault.

The only remaining bill relates to some complaint of the sheriff summoning additional jurors after the special venire was exhausted. We have examined it and find no merit in it.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

In assailing the correctness of the opinion of affirmance, appellant contends that there was error in refusing to submit the issue of assault with intent to rape.

Our re-examination of the matter in the light of the motion for rehearing leaves us of the opinion that the offense, if any, was rape, and that there was no evidence of a lower grade of assault requiring a reversal of the judgment.

The affidavit taken subsequent to the trial and accompanying the motion might have some weight with the executive department of the state, but has no place in the record on appeal.

The motion is overruled. 
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