
    WILLIAMS v. STATE.
    (No. 5944.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1920.
    On Motion for Rehearing, Nov. 24, 1920.)
    1. Witnesses &wkey;>45(2) — Thirteen year old girl held not incompetent.
    A bill of exceptions stating that prosecu-trix, a 13 year old girl, testified that she did not know the nature or effect of an oath, when qualified by the court’s statement that the witness was intelligent and as competent as any ordinary adult witness, and satisfied the court that she fully understood the difference between right and wrong, does not show that the witness was incompetent to testify.
    2. Witnesses <&wkey;45(2) — Act permitting minors to be prosecuted as delinquents does not disqualify them.
    Acts 35th Leg., 4th- Called Sess. (1918) c. 26, providing for commitment of a minor girl charged with violation of the law to a juvenile reformatory, instead of to the penitentiary, at her option or at the suggestion of other parties, merely provides a different punishment, but does not relieve her from liability to prosecution for perjury, and therefore does not render her incompetent as a witness.
    3. Rape <&wkey;52(I)— Evidence held to sustain conviction.
    Evidence held, sufficient to sustain a conviction of the crime of rape upon a girl between 13 and 14 years of age.
    On Motion for Rehearing.
    4. Witnesses &wkey;>240(4) — Question whether defendant did or did not do an act is not leading.
    A question asked by the state of its own witness whether defendant did or did not do certain things does not suggest whether the answer desired is “Yes” or “No,” and is therefore not leading.
    5. Criminal law <&wkey;109l(3) — Bill of exceptions to leading question must exclude justification for such question.
    A bill of exceptions to the overruling of an objection to a question as leading must exclude all facts which would render such a question proper, and is insufficient where the statement that the owitpaess was not unfriendly or hostile to the state was made merely by way of objection to the question, and not as a statement of fact in the bill of exceptions.
    6. Criminal law <&wkey;ll70!/2(l) — Permitting leading question held not prejudicial.
    AYhere the prosecutrix had testified fully as to all the essential elements of the offense of rape, and her testimony was corroborated by other eyewitnesses, permitting a leading question to be asked prosecutrix as to penetration was not prejudicial error.
    Appeal from District Court, Wharton County; M. S. Munson, Judge.
    Andrew Williams was convicted of rape, and he appeals.
    Affirmed.
    Chas. C. Ingram, of Wharton, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape upon a girl between 13 and 14 years of age.

The facts, to say the least of it, are peculiar. The house where the offense occurred consisted of two rooms and a small kitchen. There seems to have been about four girls, all under 18 years of age, present, the prose-cutrix being one of them. Appellant was related to some or all of them. As they express it, he was about third cousin. He was in one of the rooms lying on a cot. Prosecutrix laid down by him. Shortly after she did so appellant made a request for carnal favors, which she said was all right. She pulled up' her dress and prepared herself to receive his attention. He promptly complied, and, according to her testimony, went through a complete act of carnal intercourse. The other girls were present and witnessed the whole matter. ' They describe it in detail, differing somewhat, but all agree that he was on top of the prosecutrix. After this occurred, some of the witnesses testified that he got up, washed his hands, and others disagree as to this fact. He remained and took the evening meal ahd went away. The old grandmother was not present but “down on the river washing.” Under the testimony the act seems to have been performed under the peculiar circumstances of having eyewitnesses. But for the question of age this could not be rape, but, the girl being under 18 years of age, even with the consent of the girl, appellant violated the law and would be guilty.

AVhen prosecutrix was offered as a witness she was put through a voir dire examination as to fier competency and qualification to testify from the standpoint of intelligence. This quotation is made from the bill:

“I do not understand what is meant by swearing to testify, by taking an oath to testify. AVhen I hold up my hand and swear that I will tell the truth, the whole truth, and nothing but the truth so help me God, I don’t know whether that obligatos me to tell the truth or not. I know that it is wrong to tell a story whether I swear to it or not. I don’t know whether there would bo any punishment for-me in the future if I swore to a falsehood or story. I don’t know what I think about it.”

Objection was urged that this did not qualify her as a witness; in other words, it showed she was incompetent to testify. The court signs the bill with this qualification:

“That the court found that the witness was intelligent for' a negro girl, and as competent as any ordinary witness even above the age of 21 years, and from her manner of testifying the court was satisfied that she fully understood the difference between right and wrong, that it was wrong to swear falsely, and that she was competent to testify.”

As qualified the bill was accepted by appellant. An examination of the record would disclose a much more extended examination of the prosecutrix than is shown by the bill, but in any event we are of opinion that as qualified by the court and accepted by appellant the court was not in error in permitting her to testify in the case. Her evidence in detailing the transaction as it occurred, generally and in detail, shows with sufficient certainty and definiteness that she could give a detailed account and rather an intelligent account of the whole matter.

There are other bills of exception reserved not only*to the prosecutrix testifying, but to the other girls, because they were all under the age of 18 years and could not be punished for perjury under an indictment for perjury, but would be sent to the juvenile training school for delinquents under chapter 26 of the Acts of the Fourth Called Session of the Thirty-Fifth Legislature. That act provides, where the girl is under 18 years of age and is charged with a violation of the law, she may he sent to a juvenile reformatory and training school. This depends upon either the option of the delinquent in choosing to be prosecuted as a delinquent, instead of for a violation of the law for which she would otherwise be punished, or this option may be suggested to the court by other parties. The theory of the prosecution was that she might not be punished-for perjury, and could not unless she desired so to be, and, if not, she would not be subject to the pains and penalties for perjury, as required by the Constitution, in taking the oath as a witness. Article 1, § 5, of the Constitution provides that all oaths or affirmations shall be administered under the pains and penalties of perjury. The Legislature, under article 84, P. C., provided that no child under the age of 9 years could be punished for any offense, and where they were between the age of 9 and 13 the burden of proof was upon the state to show that they were responsible and subject to punishment. In Freasier v. State, 84 S. W. 360, this court held that a child under 9 years of age could not be punished for perjury. This led the Legislature to amend that article, and it now provides that no person shall in any event be convicted of any offense before he is of the. age of 9, except perjury, and for that only when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath, etc. That article was amended as thus it reads to meet the decision of Freasier v. State, supra. The same question came before this court under the amendment of article 34, supra, in Moore v. State, 49 Tex. Cr. R. 450, 96 S. W. 327. It was there held that, the old article being repealed by the amended article, it was no longer of binding force and effect, and the rule now is that all children of any age who testify may be subject to the pains and penalties of perjury, provided they have sufficient intelligence to know right from wrong as to the particular act in giving their testimony. This would not relieve prosecutrix of conviction for perjury under an indictment-charging that offense, unless she did in some manner claim the exemption under the delinquent child act. If that was set up, then the court would dismiss the case of perjury and try her under the Acts of the Fourth Called Session of the Legislature, supra. It would be as much a violation of the law in one case as in the other. The facts would be the same and the perjury the same, but under the delinquent child act she would be entitled to be sent to- the reformatory, instead of the penitentiary. It changed the manner of enforcing the law, but does not change the crime nor the necessary facts. It changes the manner of trying it and the manner of charging it, but the offense would be the same so far as the act of the child in testifying is concerned. It does not relieve her of punishment, but changes the place of punishment and the mode of trial. What is said with reference to prosecutrix may be said also with reference to .the other witnesses, all being under the age of 18 years, and all girls.

While the facts are peculiar and unusual, still the evidence, we think, is sufficient, and the judgment will be affirmed.

On Motion for Kehearing.

The judgment herein was affirmed on a previous day of the term, and appellant has filed a motion for rehearing, contending that this court was -in error in not reversing the 'judgment on account of the court below permitting a leading question asked a witness, and because we held that the witness, although under age and could be tried as a juvenile, should be permitted to testify. The error alleged is based on the theory that she could not, therefore, be punished for perjury because it would leave optional with the witness whether she would be tried for felony or misdemeanor as a juvenile. On the latter question we still think the opinion was correct with reference to the fact that the witness would be subject to conviction for perjury. .

The other question raised was not discussed in the original opinion, as we recall it, but, as appellant insists upon it, it will be noticed. The bill recites that while the prosecuting witness was testifying the district attorney asked her the following question: “Did or did not Andrew [meaning the defendant] put his privates into your privates; did he or not get his thing in your thing?” The objection was that it was leading, and further that the witness was neither an unwilling nor an unfriendly witness. The witness answered in the affirmative. So far as the second proposition is concerned, that the witness Was neither unwilling nor unfriendly, this was certified simply as a ground of objection, and not as a fact. If such was the case, it should have been stated in the bill of exceptions as a fact that she wa's neither an unwilling nor an unfriendly witness; but we take it that would make no difference so far as a disposition of the case is concerned. The question finally turned upon, and it seems to .be the one relied upon by appellant', the proposition that the question was leading. There are a great many authorities to the effect that a leading question is one which may be answered in the affirmative or negative, and wiiicii suggests the desired answer in. a matter material to the issue. This is supported by quite a number of cases collated by Mr. Branch in his Annotated P. O. p. 90, § 15(1. We simply refer to the cases there listed without here enumerating them. It is also stated as a rule, supported by many authorities, that if the question asked does not suggest the answer desired, it is not leading. There is a list of these cases cited in the same note by Mr. Branch. lie begins these citations with Coates v. State, 2 Tex. App. 16, and cites a great number. It is also laid down by the court as a proposition, supported by a great number of opinions, that permitting leading questions will not be reversible in the absence of showing prejudice thereby. A great number of these cases will be found cited by Mr. Branch in the same note supra.

We do not understand that this was a leading question in the sense in which the authorities mention. This question is put in the alternative: “Did or. did not” the matter happen? It did not suggest to the witness what the desired answer was. It could have been answered in the negative or in the affirmative. If the statement of facts is examined, it will be found that this witness fully detailed all the circumstances with reference to the transaction between herself and defendant. This was sufficiently stated in the original opinion. She testified, that she laid' down by him, and at his request she complied and the intercourse occurred. She told fully all the factg pertaining to it. But, looking at it from another viewpoint, this bill is not sufficient to present the question. The rule is well sustained that, where the bill of exceptions is taken because of a leading question, it must affirmatively exclude any idea that under the peculiar circumstances of the particular case the court was justified in permitting the state to ask leading questions, and, if it does not, no error is shown. Cases supporting this proposition are found collated by Mr. Branch in his work supra in section 159. This bill does not undertake, as we understand it, to meet this rule. It does not affirmatively exclude the idea that the court was not justified in permitting the question asked, even if it was a leading question. It is true the bill states that counsel objected to the question as being leading, but the question as stated speaks for itself. It does not exclude the idea but what under all the circumstances it was proper to ask the question, even had it been leading. The mere statement that the witness was neither an unwilling or an unfriendly witness is stated as a ground of objection, and not as a matter of fact.

As we understand the question, from the facts there could have been no prejudice to appellant by asking the question and receiving the answer, because the girl gave a full detail of the transaction. She testified fully to the facts, as did the other eyewitnesses, that the transaction occurred between the girl and appellant, except the other witnesses did not swear nor did they state that the private parts of prosecutrix was entered, but they testified to the fact that the act of intercourse occurred under such circumstances as such things usually occur. This is an unusual case, it may- be conceded, and a very remarkable one to the mind, of the writer. That an act of this sort should have occurred in a room in broad daylight in the presence of three or four other girls besides prose-cutrix is out of the usual. As a rule the parties to sexual intercourse do not take eyewitnesses along to view the performance, but here the act occurred in a room where a lot of girls were eyewitnesses. They at least so testified. The defendant introduced no evidence, and himself did not take the witness stand to contradict it. Therefore we take it that the jury was justified in believing the occurrence happened. The prose-cutrix testified fully to it, and the eyewitnesses corroborated her statement. It was proved to the satisfaction of the jury, and we would not therefore feel justified in reversing the judgment.

The motion for rehearing will therefore be overruled. 
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