
    NICHOLSON v. STATE.
    (No. 10181.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    Rehearing Denied Oct. 19, 1927.
    1. Criminal law &wkey;l 092(11) — Notation following judge’s signature on bill of exception and qualification held- insufficient as exception to qualification because not verified by judge.
    Notation of defendant’s attorneys written below judge’s signature authenticating bill of exception and Ms qualification thereof fteW insufficient as exception to qualification, since such exception, like any other, must be verified by trial court.
    2. Criminal law &wkey;!092(l I)— Bill of exception refused by trial court had no place in record.
    Pretended bill of exception to refusal to permit certain questions to be answered had no proper place in the record, where it was refused by trial court.
    3. Criminal law &wkey;939(3) — Newly discovered evidence held insufficient to require new trial, where ail of newiy discovered evidence was expected from witnesses who had been present at trial.
    Denying new trial in prosecution for rape asked on ground of newly discovered evidence held not error,'where all of the witnesses from whom the evidence was expected were present at the trial and three of them testified, in view of court’s offer to instruct any witness that it was his duty to tell defendant’s attorneys what he knew and of fact that certain of witnesses were known to defendant to have been present at house where offense occurred.
    On Motion for Rehearing.
    4. Criminal law &wkey;>l 169(5) — Testimony concerning blood on undergarments of defendant accused of rape was rendered harmless by instruction to disregard it.
    Testimony concerning blood on undergarments of defendant in rape case held not so prejudicial that it could not be rendered harmless by court’s instruction to disregard it.
    5. Criminal law <&wkey;74l (I) — Weight of testimony is for jury.
    What weight should be given to the testimony is a question for the jury.
    6. Criminal law &wkey;>742(l) — Credibility of pros-ecutrix in rape case held for jury.
    Whether prosecutrix in rape case entertained such feeling of resentment toward defendant as to render her testimony unworthy of belief held a question for the jury.
    Appeal' from District Court, Limestone County; J. R. Bell, Judge.
    Ed Nicholson was convicted of rape, and he appeals.
    Affirmed.
    H. F. Kirby, of Groesbeck, and N. T. Stubbs, of Mexia, for appellant.
    Sam D. Stinson, State’s Atty.; and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for rape upon his 12 year old daughter, Ruby Nicholson, his punishment having been assessed at 25 years in the penitentiary.

Prosecutrix’s mother was dead. She was living with appellant and her three brothers, one of whom was Newton Nicholson, 17 years old, and two younger children. She testified that appellant came to her bed on a Wednesday night and attempted to have intercourse with her but on that occasion did not accomplish his purpose; that on the next night appellant and Newton went to the picture show and that she was asleep when they returned; that about 11 o’clock appellant came into the-room where she was sleeping with her little brother, took her out of the bed in which she was, placed her on another bed, and there had intercourse with her; that she cried and begged him not to do so, but that he told her to shut her mouth or he would beat her to death and would kill her if she told it. According to her evidence this act caused pain and some bleeding, and as soon as he returned to his room she removed the soiled undergarments, washed, and slipped out of the house and went to the home of Mrs. Brown, who was a stepsister of prosecutrix’s mother. Mrs. Brown testified that prosecu-trix came to her house on the night in question some time between 10 and 11 o’clock knocked on the door and called, and, when let in the house, that prosecutrix was scared, nervous, and crying and said her father had overpowered and mistreated her. The next morning before breakfast the prosecutrix, under witness’ advice, went to the city hall and reported the matter. Appellant denied the transaction, and asserted that he and his son came home about 11 o’clock on the night of the alleged offense; that they both retired and that he did not go in his daughter’s room or see her after he reached home; that the next morning when he discovered she was not at home he began to search for her and was so engaged when arrested. Newton, the 17 year old son, testified as did appellant.

I)r. McKnight was used as a witness by the state. He examined prosecutrix the day after the alleged offense and found the hymen torn, the tear extending about half an inch into the vagina, the laceration appearing to be recent. The doctor also testified that prosecutrix was large enough for a man with an average size organ to have intercourse with. When Dr. McKnight made the examination, Dr. McKenzie was present. He was placed upon the witness stand by appellant, and his evidence as to the condition of prose-cutrix was in substantial accord with that of Dr. McKnight.

After prosecutrix had testified appellant ashed permission to withdraw his announcement of ready and continue the ease on the ground of surprise at her evidence. The bill of exception bringing this matter forward is quite lengthy, but when analyzed it is nothing more than a statement that it was appellant’s belief that prosecutrix was in a state of pregnancy as a result of improper relations with her uncle and appellant was surprised in her denying' that she was in such condition and also in her denying that she had been criminally intimate with her uncle. The application for continuance further asserts that appellant believed a conspiracy existed between prosecutrix and her uncle to get him out of the way, and if granted a continuance he could prove such matters. He gives the name of no witness and states-no particular fact which he expects to be able to prove. The most that can be said ofl his application is that it amounts only to- an appeal to the court to continue the ease with the expressed hope that appellant might be able to find,some witness who would give testimony supporting the averments. Hilly v. State, 105 Tex. Cr. R. 436, 289 S. W. 61; Marta v. State, 81 Tex. Cr. R. 135, 193 S. W. 323; Hodde v. State, 8 Tex. App. 382; Withers v. State, 23 Tex. App. 396, 5 S. W. 121. The court appends to the bill a lengthy ex planation which makes it dear that his refusal of appellant’s request was not error. Following the judge’s signature authenticating the bill and his explanation thereto there appears a notation as follows: “To which qualification the defendant objects and excepts.” This is signed only by the attorneys. It is not such an exception to the judge’s action as will authorize consideration. Hike any other 'exception it must be verified by the trial court before this court can consider it as properly in the record. If the notation had been authenticated by the trial judge it would have been sufficient without the necessity of a separate bill complaining of the explanation.

What purports to be bill of exception No. 2 is a complaint because of the refusal of the court to permit prosecutrix to answer certain questions which were set out. This bill has no place in the record. It was refused by the court for the reason as stated by him that the questions were not asked. Many authorities are collated- under note 35, art. 667, Vernon’s C. C. P. 1925, vol. 2, p. 404. Bills of exception Nos. 4 and 5 present no error in view of the explanation placed thereon by the court.

Among other grounds for a new trial appellant alleged newly discovered evidence set out in his motion which he expects from the witnesses Dr. McKnight, Dr. McKenzie, Mack Tom Nicholson, and Newton Nicholson. In order to excuse himself from .the lack of diligence in not discovering the .alleged new evidence of the doctors, appellant avers that they declined to talk to Ms attorneys. Both physicians testified as witnesses, one having been called by the state and the other by appellant. They say in their affidavits attached to the motion the reason that they did not testify to the facts claimed to be newly discovered was because they were not questioned relative thereto and the reason they did not talk to the attorneys was because they thought they were not permitted to do so. In appellant’s application for continuance heretofore discussed he avers that the two physicians named had refused to talk to his attorneys. It is stated in the court’s explanation to that bill that on the morning of the trial and before the convening of court appellant’s attorney complained of not being able to communicate with some physician whose name the judge did not recall, and that he then told them he would instruct any witness who refused to talk to them that it was his duty to tell them what he knew about the case, but that he was not called upon to so instruct any witness; that in addition to this offer the court instructed the witnesses when they were placed under the rule that the attorneys had a right to talk with them regardless of which side they represented. If counsel ever attempted to talk to the physicians after this and met with refusal the record does not show it. The matters claimed to have been newly discovered could have been ascertained from the doctors if counsel had availed themselves of the offer -and aid of the court, or by questioning them while on the stand. We failed to note any reason for failure to discover the matters which it is now alleged that Mack Tom Nicholson would testify to except that he was not asked about it. He was the 10 year old son of appellant, was known by him'to have been at home on ■the night of the alleged offense, and-was present at the trial. The same is true of Newton Nicholson. He was present and testified as a witness. Of the four witnesses from whom the newly discovered evidence is claimed, all were present at the trial and three of them actually testified. It is only in exceptional cases that newly discovered evidence can be claimed from witnesses who were present at the trial. See section 204, Branch’s Ann. Tex. P. C., and Barrett v. State, 98 Tex. Or. R. 627, 267 S. W. 511, for collation of authorities. It is believed appellant does not bring himself within any of the exceptions.

The judgment is affirmed.

On Motion for Rehearing.

HATTIMORE, J.

In the light of appellant’s motion we have again reviewed the testimony in order to see if we could agree with his contention that the testimony, concerning. blood upon the undergarments of the appellant was of such great prejudice and injury to him as that same could not be withdrawn by the court’s instruction, but we have become more convinced of the correctness of our decision in this regard.

The juries under our system are made responsible for the decision as to the weight of the testimony and the credibility of the witnesses. The claim advanced in the motion that the prosecutrix entertained such feeling of resentment toward appellant as to render her unworthy of belief has already been referred to the jury and by them decided adversely to the appellant, and this court would be unwilling to go counter to such finding unless upon a much greater showing than is made in the record before us.

We see no reason for attempting to make a distinction between a case such as is now before us and any other case which' has been before the court upon similar state of facts.' The question of the ruling of the trial court in the matter of talking tyitli the attorneys for the defense by the prosecuting witness seems in line with other decisions. These are the only questions presented in the motion for rehearing, and same is hereby overruled. 
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