
    BREIGER v. STATE.
    (No. 8126.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.)
    1. Rape <@=49(l)— State may show why prose-cutrix made no complaint.
    In prosecution for rape, state may show why prosecutrix made no outcry or complaint, or why she delayed making it.
    2. Rape <g=»5l (4) — Forcible violation of person not shown.
    In prosecution for rape, evidence held to show overpersuasion and yielding, rather than forcible violation of person.
    3. Witnesses <©=3318 — Denial by prosecutrix to doctor that a boy was to blame for her failure to menstruate improperly admitted.
    In prosecution for rape, testimony of denial to doctor’s suggestion that a boy might be to blame for her failure to menstruate held improperly admitted to explain tardiness in bringing complaint, under claim that she was unconscious and did not know of act at time; it being self-serving statement of unimpeached witness, and mere hearsay.
    4. Criminal law <©=3476 — Admission of doctor’s answer to hypothetical question-, regarding rape, error.
    Admission of doctor’s answer, to hypothetical question, that from facts as testified by prosecutrix it was his opinion that penetration was effected on occasion in question, held error as not subject of expert testimony, f
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Louis Breiger was convicted of rape, and he appeals.
    Reversed and remanded.
    Amos Peters, of Taylor, and Wilcox & Graves, of Georgetown, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for rape upon Mary Zak. Punishment, five years in the penitentiary.

Miss Zak is shown to have been a young woman 26 years of age. A short time after she went to work in a store in Taylor, she met appellant at a dance. He would often pick her up in his car as she was coming to and from the store, and take her to whichever place she was bound. They would go automobile riding together, and with other young people . attended swimming parties. He professed to love her, but never mentioned marriage. He had kissed her a number of times. The offense is claimed to have occurred on the night of December 25th. For perhaps a month prior to that time prosecu-trix says 'appellant had been talking to her about girls and boys having “good times”; that she told him she was not that kind of a girl, to which he would reply that he knew she was a nice girl, but that everybody else was having “fun,” and why could not they have some fun; that this was all he would say, but that she understood what he meant; that she continued to go with him. A letter introduced in evidence written by prosecu-trix (referred to in'more detail, later) indicates that the subject of having a “good time” was discussed between them.more intimately and extensively than appears from the above recital-. On the night of December 25th, appellant and prosecutrix went in an automobile some two or three miles east from Taylor, where the car was stopped. Prosecutrix testified as to what then occurred as follows:

“The.n he-stopped the car, and he says, ‘It sure is cold to-night.’ He said, ‘Take a little drink of whisky.’ He had something in a bottle,’ and he asked me to take a little drink of it; said it was whisky. I said I didn’t drink whisky. He said: ‘That won’t hurt you. It will make you feel good.’ I refused, and he said, ‘Xou are just afraid it is something else, but it is $6 whisky,’ and he said, T am going to take a drink myself and get drunk myself.’ It smelled like whisky; of course, I didn’t take any myself, but it smelled like whisky.’ And he said: ‘Mary, this is Christmas night, and we want to have some fun, I want you to be a real sweet little girl to me. Let’s have some fun.’ I said, ‘What do you mean?’ He said: ‘That is all right.. Let’s have some fun like everybody else.’ I said: ‘What do you take me for? What do you think I am?’ He says, ‘Nothing.’ He said, ‘I know you are. a nice girl, that is the reason I am going with you,’ and he said, ‘Any time I ruin a girl I stay with her.’ I said, ‘No.’ He said, Let’s get out of the car.’ I said, ‘No.’ I was just trembling. And he got out of the car and put his overcoat on the ground, and asked me to get out of the car. I wouldn’t do it, and he kept on begging. I said, ‘No,’ and began crying. He said, ‘Hush your crying.’ I was so excited I didn’t know what to do. I stayed in the car and held myself onto the steering wheel. He kept on begging me, and I kept on crying. He said, ‘Come on, I am going to have my way this time,’ and he got real rough with me. He took hold of me. He caught hold of my arms and jerked and jerked me until he jerked me out of the car and got me down on the ground, and we had a fight there, and when I could get my breath I said: ‘For God’s sake! Kill me before you do anything else.’ He said: ‘No, I am not going to kill you; you just keep still.’ I was so excited I didn’t know what to do any more. And he tried to get to me, and he couldn’t for a. long time, and then I didn’t know any more; I fainted. I didn’t know any more until I was in the car and' he had the car started. I just felt so weak and felt so sore. I said, ‘What did you do to me?’ He said, ‘I didn’t do anything.’ I said: ‘You surely did; I feel so bad.’ He said, ‘I didn’t do anything.’ I said, ‘You take me right straight home.’ He said, ‘All right,’ and' he took me home. When I got out of the car and had this fight, I fought with him and struggled with him. When I said X fainted, I mean that I lost consciousness; I didn’t know anything about what all he done with me or how long he kept me down. I was in the car when I came to. The car was standing still. He was in the car when I first regained consciousness, or by the car cranking up. I don’t remember if he had his overcoat on. X asked him then to take me home, and he took me home. .1 got home about 9:30. I did not know that night what he had done to me. That night I found a discoloration of some kind about my underclothes. Of' course, I didn’t know what it was, but it was kinder like blood on my clothes when I got home. In addition to that, I felt weak, and I was- sore and felt bad and everything like that. The soreness was about my private parts.”

We condense her further testimony: She says that about the second week in January she missed her menstrual period and went to Dr. Feaster for some medicine to correct the trouble; that she took the medicine without effect, and a few days later went back to see him, at which time he told her that sometimes boys were to- blame for such condition, to which she replied, “No, not in my case.” (This testimony was objected to, but we will advert to that later.) She claims that at the time she went to Dr. Feaster she did not know that appellant actually had an act of intercourse with her. After her second visit to Dr. Feaster, she phoned for appellant to come to her house, and claims that in a conversation she again asked him what he had done to her on Christmas night, and told him about having missed her menstrual period; that she told him she did not know whether he had done anything to her because she was unconscious at the time; that he told her that she need have no worry, that so far as he was concerned there was nothing wrong with her. After that she went to .see Dr. Miller. She says neither Dr. Feaster nor Dr. Miller told her she was pregnant. Some time in February she -went to see Dr. Wedemeyer. After examining her, she says he informed her she was in a “family way”; that she replied to him, “Could that be possible and me not know it?” to which she says he replied: “Of course, if you were unconscious you wouldn’t know it. You must have fainted.” She says that upon this occasion she told Dr. Wedemeyer what had occurred between her and appellant on Christmas night. This is the first report she made of the matter, claiming to have then ascertained for the first time that appellant actually had intercourse with her. The record leaves it somewhat uncertain whether Dr. Wedemeyer told prosecutrix she must have fainted and, of course, would have no knowledge of the act before prosecu-trix related to him the circumstances of the transaction with appellant, or whether his statement in that respect was made after she had related them. We remark here, if the story told by prosecutrix is true, she had known from Christmas .night up to the time of her conversation with Dr. Wedemeyer. that appellant had made an outrageous assault upon her, though falling short of an actual rape as she claimed to believe, but she had made no report of it. She did not even report the matter to the authorities after learning from Dr. Wedemeyer that she was pregnant. She says that after her visit to Dr. Wedemeyer she again had a conversation with appellant, in which he advised her to go to Dr. Feaster and see if be would relieve her condition; that Dr. Feaster declined to do so; that after reporting this to appellant, she had a conversation with an attorney; that she then met appellant at the home of Father Dreiss, he being the Father in the Catholic Church to which both pros-ecutrix and appellant belonged. The conversation with appellant at this time is not related by either prosecutrix or the priest. The first report of the matter which appears to have been made to the authorities was when prosecutrix appeared before the grand jury in May, some six months after the offense is alleged to have occurred. Pros.ecu-trix testified on direct examination that, after appellant pulled her out of-the automobile, they had a “fight” on the ground, and she became unconscious. Upon cross-examination she testified that he did not strike, kick, choke, threaten, or bite her. She makes no claim that any of her clothing was in any manner torn or disturbed. Nothing is detailed which would ordinarily lead to fainting or unconsciousness. After their return to the home of prosecutrix, appellant hissed her good night. Appellant introduced in evidence a letter written him by prosecutrix of date February 23. In this letter no mention is made of her visit to Dr. Wedemeyer, but she says she desired to see appellant in order to report to him what Dr. F. (evidently referring to Dr. Feaster) had told her. One clause of this letter reads:

“Of course, so far this is only between us and the Drs. and of course they don’t know about you being the one for I did not tell them, and to no one else yet but I am worrying my head off about my parents.”

This would indicate that the letter was written either before she told Dr. Wede-meyer about the alleged assault, or that she was concealing from appellant the fact that she had told Dr. Wedemeyer about it. A further quotation from this letter reads:

“Louis, can you imagine how you had insulted me? You know yourself that you did not do anything but wrong to me that nite, for I had begged you and cried and told you to rather kill me than do anything of that kind, but you did not do anything else but pulled me out the car and do your own way — but as sure as God is-above us I did not think that night that you did anything that could possibly put me in such a way. I thought I knew everything you did and I guess you thought the same way but we both were very mistaken as we know it now. Now listen, Louis, you know you tried to persuade me to this every time you were with me and didn’t I always tell you that I was afraid? that you can’t tell what can happen? and you said you know what you are doing when you do anything of that kind.”

Notwithstanding she testified upon the trial claiming to have no knowledge that appellant had intercourse with her on the night in question, and claiming that she had continually told him that she was unconscious, yet the foregoing quotations do not sustain, such view. It is further apparent from this letter that upon being solicited by appellant to have intercourse with him, she. declined because she was afraid of the result. Appellant introduced another letter written him by prosecutrix from the Maternity Home in Houston on April 9. In that letter, among other things, she says:

“You know how I felt the night you ruined me, you knew I was all excited until I was trembling and I guess one-half the time I was unconscious for you know how long you kept me down. I believed you the first month, but after the doctors told me better I knew better.”

In this letter she tells him he is the father of her unborn child; that he must make a decision between then and the last of the month to do one of three things — first, to marry her; second, to pay a certain sum of money; or, third, to go to the penitentiary, leaving it optional with him to choose one of the three alternatives.

As applicable to the present case, we quote from Terry v. State (Tex. Cr. R.) 266 S. W. 511:

“The question at issue in the present case is whether there was carnal knowledge of the prosecutrix by the appellant without her consent. Upon such a.n issue experience demonstrates that the evidence of the prosecutrix demands careful scrutiny. Unexplained failure to make outcry and delay in making complaint tend to show consent. The absence of visible evidence of injury to the prosecutrix by her alleged assailant or the spoiling or disarray p£ her garments are of probative value; and where the concealment of the alleged transaction extends to a time when circumstances render it impossible to hide it longer, its potency as against the idea of force is enhanced. See Ruling Case Law, vol. 22, p. 1187, § 19; also, page 1181, § 12; Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 Ann. Cas. 258; Underhill’s Crim. Ev. (3d Ed.) p. 847. § 614.”

The state may show why the prosecutrix did not make outcry or complaint, or the reason why she delayed making it. Sharp v. State, 15 Tex. App. 189; Warren v. State, 54 Tex. Cr. R. 443, 114 S. W. 380; Pettus v. State, 58 Tex. Cr. R. 546, 126 S. W. 869, 137 Am. St. Rep. 978. Are the reasons here satisfactory? Prosecutrix says she did not know the carnal act was completed. She was content not to report an assault with intent to ravish her, and if the developments had not been such that revealment of her pregnancy could not longer be delayed, who can say that any report would ever have been made by prosecutrix. The story told by this unfortunate girl excites our keenest sympathy, but the statement in one of her letter's may furnish the key to the whole deplorable transaction. It is to the effect that when appellant would urge her to extend him sexual favors she declined, not because the suggestion was obnoxious to her sense of virtue, but because she feared what might result from such indulgence; then would come the further assurance from him that he was wise in such matters. Flom all the facts in evidence, the conclusion would not be exaggerated that such relations as occurred between appellant and prosecutrix was the result of overpersuasion on his part and yielding upon hers, rather than forcible violation of her person. The evidence of force and nonconsent is of doubtful potency.

When the state offered to prove by prosecutrix that upon one of her visits to Dr, Feaster he said, “Well, sometimes boys are to blame,” and that she replied, “No, not in my case.” The objection was made that it was a self-serving declaration on the part of prosecutrix and an attempt to corroborate herself. From the qualification to the bill it appears the learned trial judge admitted this testimony as a part of the outcry of tlie witness to tlie assault claimed to liave been made upon ber and as an expression on ber part as to wby sbe did not accuse appellant of having ravished ber. It does not occur to us that the statement in question was admissible upon either theory. Sbe did testify that sbe did not know that an act of intercourse bad been consummated with ber upon the night in question. This was admissible as a reason wby sbe did not report, a rape. The testimony objected to was not an outcry nor a reason wby sbe bad not made one. Its only effect was to corroborate herself as to wby sbe bad not made such outcry. In our judgment it was hearsay and comes under the rule that a witness who has not been impeached cannot legally be bolstered up by proof that be bad made statements to other persons to the same effect as that testified to upon the trial. Many cases will be found cited upon this proposition under section 181, p. 112, Branch’s Ann. P. 0.

Complaint is made of a hypothetical question propounded to Dr.' Martin by the district attorney. After advising the doctor of the facts testified to by prosecutrix, be was asked, if under those circumstances, what was bis opinion as to whether prosecutrix was penetrated upon the occasion in question. Objection was interposed that proof of such penetration could not be made in such manner and was not the subject of expert testimony. This question was improper. The witness should not have been permitted to answer it. The bill as presented in the record is somewhat confusing, but is subject to the construction that the testimony of Dr. Martin went to the jury stating in effect that under the circumstances detailed to him in the hypothetical question it was his opinion that penetration was effected.

For the errors discussed, the judgment is reversed and the cause remanded. 
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