
    KITCHEN v. STATE.
    (No. 9339.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law ®==»1091 (14) — Single bill of exceptions to testimony of five witnesses not considered.
    Single bill of exceptions to testimony of five witnesses is multifarious and need not be considered.
    2. Witnesses &wkey;?6I(l) — Wife competent witness against husband prosecuted as accessory to rape on her.
    In trial of husband as accessory to rape on wife, latter was competent witness against him, under Vernon’s Ann. Code Cr. Proc. 1916, art. 795.
    3. Rape <&wkey;>38(l) — Wife’s testimony that husband, tried as accessory to rape on her, accused her of setting fire to his paramour’s house held admissible.
    In trial of husband as accessory to rape on wife, where state’s theory, supported by evidence, was that he wished wife to leave him in order that liaison with another woman might be uninterrupted, it was competent for state to show by wife that defendant had accused her of setting fire to house in which his paramour resided; any differences between him and wife concerning paramour at about time of offense being provable as shedding light on his motives. . ,
    4. Rape &wkey;>38(l) — Testimony of principal and defendant accessory’s paramour that defendant frequently stayed with her held admissible.
    In trial of husband as accessory to rape on wife by another, latter’s testimony and that of defendant’s paramour that defendant frequently visited and stayed at her house held admissible to show that defendant’s -motive was to scare wife into leaving him in order that his liaison with paramour might be uninterrupted.
    5. Witnesses &wkey;>396(l) — Proof of why witness testified differently than on his own trial held admissible.
    In trial of husband as accessory to rape on wife, state could prove why witness, theretofore convicted of actual commission of crime, testified differently than on his own trial, sucb fact being proper for jury to consider in weighing his testimony.
    6. Criminal law <&wkey;(l09l(4) — Bill of exception not stating testimony complained of insufficient.
    Bill of exception to admission of evidence, which does not set out facts testified to by witness, is insufficient.
    7. Criminal law &wkey;507(7)-Defendant’s paramour evading process, at his request, for appearance as witness at codefendant’s trial held not accomplice whose testimony must be corroborated.
    That woman testifying for state in trial of defendant as accessory to rape on his wife was his paramour, and, at his request, evaded process and failed to appear as witness at trial of another for actual commission of offense, did not make her an accomplice, so as to require that her testimony be corroborated, in absence of other evidence tending to connect her with offense as principal or accessory.
    8. Criminal law &wkey;>1099(5), 1144(15) — Question as to misconduct of jury presumed correctly decided^ in absence of timely statement of facts.
    Statement of facts pertaining to misconduct of jury, filed after trial term, cannot be considered on appeal, and, in its absence, appellate court must presume that trial court correctly decided question presented.
    On Motion for Rehearing.
    9. Criminal law &wkey;s511 (9) — Accomplice’s testimony held sufficiently corroborated by testimony of defendant’s paramour as to confession by him.
    In prosecution of husband as accessory to rape on wife, testimony of codefendant, theretofore convicted of actual commission of crime, that defendant commanded its commission and was present at time, thus making him principal offender under Vernon’s Ann. Pen. Code 1916, art. 78, held sufficiently corroborated, under Vernon’s Ann. Code Cr. Proe. 1916, art. 810, by testimony of defendant’s paramour that he told her he was present and wanted to run his wife off.
    Commissioners’ Decision.
    Appeal from District Court, Walker County; Carl T. Harper, Judge.
    Elbert Kitchen was convicted of rape, and he appeals.
    Affirmed.
    M. Jj. Bennett and E. R. Swanger, both of Normangee, and P. H. Singeltary, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

This is a companion case to that of Melton Carr v. State, 273 S. W. 256, decided by this court on June 3, and that case contains a sufficient statement of the facts.

There are nine bills of exception in the record. Bills 1 to 5 are combined and contained in the same bill, and in this bill objection is made to the testimony of five different witnesses. This bill is clearly multifarious, and we would be justified in refusing to consider it on that ground, but, in addition to this, under the record in this case, the five bills show no error.

The first bill objects to the witness Fannie Kitchen testifying against the defendant because she is his wife. .There is no merit in this contention. This was an offense committed against the wife, in which the record discloses that the appellant was a principal offender, and, under article 795, Vernon’s O. G. P. 1916, and the many authorities there cited construing said article, appellant’s wife was clearly a competent witness against him.

Bill No. 2 complains at the action of the court in permitting the state to prove by the wife that the appellant had accused her of setting fire to a house in which Evanetta Blackshire resided. It was permissible to prove any differences that appellant and his wife may have had at or about the time of this transaction, concerning the negro woman, Evanetta Blackshire, because it was the theory of the state, strongly supported by the evidence in the case, that appellant was living in adultery with the woman Evanetta Blackshire, and was desirous of having his wife leave him in order that his liaison with the Blackshire woman might be uninterrupted. It was further in' evidence that some one had set fire to the house in which appellant’s alleged paramour lived, and it was clearly competent for the state to show by the wife of the appellant, under these circumstances, that he had charged her with this offense. Being permitted by the article of the code above citedi to testify against her husband, it was proper for the state to prove by her any fact that would shed light on appellant’s motives for the dastardly and unnatural crime with which he was charged.

There is no merit in appellant’s complaint contained in bill No. 3 to the effect that the witness Melton Carr was permitted to testify that the appellant frequently stayed at the house of the Blackshire woman, his alleged paramour. This was proper and pertinent testimony showing motive on appellant’s part for the commission of the crime with which he was charged. It was also pertinent for the state to prove the reason that caused the witness Carr to testify dit-ferently on this trial from wliat lie liad testified on the .trial of his own case. He had a right to explain the reason for changing his ■testimony, and it was a proper matter for the jury to consider and determine in weighing- the value of the testimony given by this witness.

Bill -No. 5 complains at the court’s action in permitting the witness Blaekshire, appellant’s alleged paramour, to state that appellant had been coming over to her house during the year she had lived there. What has been said above disposes of this complaint adversely to the appellant’s contention.

In addition to what has already been said with reference to the above bills of exception, it may be proper to state'that same do not set out any of the faets( testified to by the witness which would show or tend to show the inadmissibility of the testimony complained of. A bill of exception to the admission of evidence which fails to state facts from which this court can determine whether the question objected to was improper or injurious is insufficient. See paragraph 3, section 29, page 543, Vernon’s Ann. Code Cr. Proc. 1916, for many authorities sustaining this proposition.

Appellant complains by bill No. 6 at the court’s action in refusing to instruct a verdict of not guilty. The evidence in this case is entirely sufficient to convince us beyond any question that the jury was warranted in finding the defendant guilty.

By proper instructions appellant asked the court to submit the question of Evanetta Blackshire’s being an accomplice to the jury. Under the undisputed facts in this case, we find nothing which to our minds suggests that this witness was in such a status as to require that her testimony be corroborated. The fact that she was appellant’s paramour-does not make her an accomplice. The only other circumstances that appellant could contend would bring her within the category of an accomplice is the fact that she, at appellant’s request, evaded the process of the court, and thereby failed to appear as a witness when appellant’s codefendant, Melton Carr, was tried for this same offense. There is nothing in -the record that even tends to connect this witness with the commission of the offense as a principal, and nothing further than the fact that she evaded the process of the court and thereby failed, at appellant’s request, to testify against his co-defendant, that would in any manner .tend to connect her with the offense as an accessory. Mr. Bishop has stated the rule to be:

“The test of an accessory after the fact is that he rendered his principal some personal help to elude punishment, the kind of help being unimportant.”

He further states:

“Keeping a witness by persuasion or intimidation from appearing against a felon on Ms trial does not render one the felon’s accessory.”

The exact question here presented was in our opinion decided adversely to the appellant’s contention in the case of Schackey v. State, 41 Cr. R. 255, 53 S. W. 877. See section 705, page 362, Branch’s P. O., for full collation of authorities on this subject.

Appellant complains at the court’s action in refusing him a new trial because of the misconduct of the jury. The record shows that the statement of facts taken on the trial of this issue before the court was not filed in the court below until the 23d day of February, A. D. 1925, and caption to the transcript shows that the term of the court at which the case was tried adjourned on the 6th day of December, A. D. 1924. The authorities are uniform to the effect that the statement of facts taken concerning matters involving misconduct of the. jury must -be filed during the term of court at which the trial occurs. We therefore cannot consider the statement of facts pertaining to the misconduct of the jury in this case, and in its absence we Cannot do otherwise thái presume that the court correctly decided the question presented.

We have carefully considered every complaint made by appellant in this record, and it is our opinion that he has been accorded a fair and an impartial trial, and that the judgment should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The sufficiency of the evidence to support the verdict is challenged. Appellant claims that in proving the corpus delicti the state relied alone upon the testimony of witnesses who wei*e accomplices within the meaning of article 801, C. C. P.. which forbids the conviction of one of crime upon the uncorroborated testimony of an accomplice.

It is the state’s theory that Meiton Carr, a negro, was induced by the appellant to ravish his wife. Carr, who had been previously tjtied for the offense and against whom a verdict of guilty assessing the death penalty had been rendered, was used by the state as a witness against the axipellant. Carr testified that upon the night of the offense he met the appellant at the home of Evanetta Blaekshire, a negro- woman. They left her house together, and went to a point near the dwelling house of the appellant. Carr then went to the house and sought to induce the appellant’s wife to come out of it, appellant, in the meantime, waiting near by. Failing to induce her to come out, Carr went to the appellant and reported his failure. Appellant demanded that Carr return and accomplish the rape, 'and emphasized his command witE a .threat to kill Mm. According to his testimony, Carr then went to the appellant’s home, broke open the door, dragged the woman from the house and ravished her. Appellant, in the meantime, was near by and was holding the hat of Carr. Upon the return of Carr to the place where the appellant was standing, the latter was told that the rape had been committed, and remarked with an oath that he guessed Ms wife would leave. The two then returned to the home of the negro woman.

Carr, on Ms own trial, disclaimed any connection with the offense. On the present trial he explained the change of his testimony by the statement that at the time of his own trial he felt sure that if he revealed the true facts he would be killed by the appellant. According to Carr, at the time the offense was committed appellant was only a short distance away. The moon was shining.

From Evanetta Blackshire’s testimony it appears that she was a paramour of the appellant; that he was at her house during the first part of the night; that while he and she were in bed together Carr came, and the two left the house. Appellant subsequently returned, at which time he told her that Carr had been with his wife and had been “fooling with her”; that he wanted to run her off. Quoting hex, she said:

“When he came back that night he told me about Big Ones, that is, Melton Carr. He told me about Melton having been with his wife. He said that Big Ones had been with his wife, and had fooled with her, and after he got through he kissed her and told her, ‘Honey, go in the house and go to bed.’ * * * I did not know about Melton Carr raping Mrs. Kitchens until Mr. Kitchens told me he saw Melton when he did it, and he said he was close enough to see it. He told me he was close to a black-jack tree.”

She further testified that upon the trial of Melton Carr, under the influence of the appellant and upon his threats to kill her, she had hid in the woods and refrained from attending the trial.

Appellant told a deputy sheriff that lie did not want the law to handle the assailánt of his wife; that he would take care of the situation. When told that they were about to bring into town the negro who had raped his wife, appellant said that he wanted her to identify Mm, and that he would then kill him.

- Appellant’s wife testified that Carr had broken into her house, taken her outside, and ravished her. The evidence showed that she went to the home of the appellant’s father and reported the matter upon the same night. Her young son also testified that a negro had assaulted his mother. She further testified that appellant did not spend the night at home, but told her he was going to the pasture. She said, however, that at the time of the assault she did not see him; that she did not believe he was there, or that he was guilty of the offense.

Carr, of course, was an accomplice witness, and his uncorroborated testimony would not support the conviction. The position taken by the appellant is that there is not corroboration of Cai’r to the point that the appellant advised the commission of the offense and was present at the time it was committed. This contention is based upon the proposition that the woman Evanetta Blackshire was an accomplice witness. If she was not an accomplice, the appellant’s position seems untenable. Her testimony was to the effect that the appellant told her that he was present when Carr committed the offense ; that he did not care because he wanted to run his wife off. She also testified that C'arr and the appellant, on'the night of the offense, were together at her house both before and after the time that the assault was made. Aside from this extrajudicial confession of the appellant, the fact that the rape was committed by Carr is established by the testimony of C-arr, supported and corroborated by the testimony of the appellant’s wife. Carr gave direct testimony that the appellant commanded and was present at the commission of the offense, thus making him a principal offender under article 78, P. C. See, also, Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046. Appellant’s extrajudicial confession, if proved to have been made by Mm, was available to the state to corroborate the accomplice Carr. On this subject, see Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Harkey v. State, 90 Tex. Cr. R. 213, 234 S. W. 221, 17 A. L. R. 1276, and cases cited; also Aven v. State, 95 Tex. Cr. R. 155, 253 S. W. 521.

Proof of the confession was by the witness Blackshire. The fact that she secreted herself or permitted herself to be secreted and x-efrained from testifying upon the trial of Carr did not, in our opinion, characterize her as an accomplice witness. On this subject, in addition to the authorities cited in the original opinion, reference is made to Rhodes v. State, 11 Tex. App. 563; Porter v. State, 43 Tex. 367; Chenault v. State, 46 Tex. Cr. R. 355, 81 S. W. 971; Alexander v. State, 82 Tex. Cr. R. 431, 199 S. W. 292; Herndon v. State, 82 Tex. Cr. R. 232, 198 S. W. 788; Burge v. State, 73 Tex. Cr. R. 505, 167 S. W. 63; Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Robertson v. State, 46 Tex. Cr. R. 442, 80 S. W. 1000; Schackey v. State, 41 Tex. Cr. R. 255, 53 S. W. 877. Without quoting them, the conclusion is stated that the authorities cited fully support the ruling of the trial court in declining to instruct the jury upon the law of accomplice testimony pertaining to the witness Black-shire. The only authority which has come to our notice which would support the contention that she was an accomplice, or that the testimony was sufficient to present the issue to the jury, is Gatlin v. State, 40 Tex. Cr. R. 116, 49 S. W. 87, which was overruled in Chenault’s Case, supra, wherein the contrary doctrine was asserted.

The witness Blackshire not being an accomplice, her testimony, if believed by the jury, went to show that the appellant had admitted his presence at the time the offense was committed. Appellant’s confession, the offense being otherwise proved, was sufficient to meet the measure of the law demanding that the corroborative evidence be such as tends to connect the accused with the commission of the offense. See article 810, C. C. P.

Prom the record before us, we are constrained to conclude that the evidence is sufficient to support the verdict of the jury, and that no error is shown to have been committed in the conduct of the trial.

The motion is overruled. 
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