
    AYRES v. STATE.
    (No. 9614.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Granted May 12, 1926.)
    1. Criminal Jaw <&wkey;1169(5) — Permitting state in rape trial to ask defendant’s wife if she remembered finding poison medicine in her yard held not reversible error where court excluded entire- question and answer from jury.
    In rape trial, permitting state to ask defendant’s wife if she remembered finding some loud-smelling poison medicine in her yard, held not reversible error, where court excluded entire question and answer from jury’s consideration.
    2. Criminal law <&wkey;730(14) — Prosecutor’s appeals to jury to protect virtue of women held not ground for reversal, where court sustained objections to, and instructed jury not to consider, arguments, and penalty assessed was not excessive.
    In rape trial, private prosecutor’s lurid appeals to jury to protect virtue of young women of county held not so prejudicial as to justify reversal of conviction, where court sustained objections to, and instructed jury not to consider, arguments, and penalty assessed was not excessive.
    3. Criminal law <§=>717 — Prosecutor’s correct statement in argument that object of law is not only to punish guilty, but to deter others from committing like crimes, held not reversible error.
    In rape trial, private prosecutor’s statement of correct legal propositions in argument that object of law is not only to punish guilty, but to deter others from committing- like crimes, held not reversible error.
    4. Criminal law &wkey;>722(3) — Prosecutor’s statement in argument that facts, if believed, make out defendant a seducer and rapist, held not error.
    In rape trial, prosecutor’s statement in argument that “facts in this ease, if believed, make out the defendant a seducer and rapist of the purest flower of womanhood,” held not error under facts.
    5. Rape <&wkey;>40(5).
    Question of prosecutrix’s chastity is proper inquiry in trial for rape on girl over 15.
    6. Criminal law <&wkey;l 120(8) — Bill of exceptions not singling out improper part of question in rape trial as to prosecutrix’s reputation for chastity and ladylike conduct held to show no error.
    In- trial for rape on 16 year old girl, bill of exceptions to admission of testimony as to pros-ecutrix’s reputation for chastity and “ladylike conduct” showed no error, where it did not single out improper part of question; question of chastity being proper inquiry.
    7. Criminal law <&wkey;>l 120(8) — Defendant must separate in bill of exceptions, and level objections at, part-of testimony deemed inadmissible, to save point, where part of testimony is admissible.
    Defendant desiring to save point that part of question, calling for testimony in part admissible, was improper, must separate in bill of exceptions, and level objections at, part deemed inadmissible.
    On Motion for Rehearing.
    8.Rape <@=52(1).
    ( Evidence held insufficient to support conviction of rape on 16 year old girl; in view of Pen. Code 1925, art. 1183, making unchastity a defense.
    Commissioners’ Decision.
    Appeal from District Cour.t,- Van Zandt County; Joel R. Bond, Judge.
    Rebb Ayres was convicted of rape, and he appeals.
    Reversed and remanded.
    Butler, Price & Maynor, of Tyler, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is rape, and the punishment is 8 years in the penitentiary.

The prosecutrix was 16 years old at the time of the alleged offense, and she testifies that the act of intercourse took place at the appellant’s home in the nighttime, while she and her father and mother and other members. of her family were spending the night, and that it occurred in a room on a bed on the floor that was being-occupied by herself and two small children; that appellant’s wife was on a bed within a few "feet of her, and her father and mother were in an adjoining room with an open door between, and, if awake, were in sight of her and appellant. The appellant seriously contends that the evidence is insufficient to support the verdict. We have given it most careful consideration because of its rather unusual nature. We have reached the conclusion deliberately that the testimony under the entire record is sufficient. In addition to the girl’s testimony there were other circumstances detailed in the record tending to support- the state’s case. Por instance, the appellant’s wife testified that the prosecutrix spent the night at her house in July of the year when the offense is alleged to have happened in April, and that she asked the witness to make her bed on the gallery, and. witness did, and that about 10:30 o’clock the prose-cutrix got up and came to the appellant’s bed and asked him to come and sleep with her, which he refused to do. Similar testimony as to this transaction in July was given by the appellant himself. The prosecutrix also testified that the appellant gave her medicine and asked her to take, it for the purpose of producing an abortion. The state offered in evidence one of the receptacles or boxes in which prosecutrix claimed this medicine was sent and prosecutrix tííaimed that this box contained a piece of paper on which a pattern was drawn, and the state offered this pattern in evidence and proved by the' sister of the wife of the appellant that she drew this pattern herself and gave it to appellant’s wife. In addition to this, the proof shows that appellant frequently visited at the home of prosecutrix, and that he continuously left his shaving parpherna-lia there and did his shaving at her house. We think under the facts detailed above the jury was warranted in believing that the prosecutrix’s testimony was credible. In any event, it presented an issue of fact that was properly left to the jury for its solution, and we find nothing in the record that would warrant us in saying that the jury’s verdict is without support in the legal evidence.

Appellant also contends that the court, erred in permitting the state to ask the wife of the appellant if she remembered having-found some loud-smelling poison medicine in her yard in October, and that the children got hold of it. The witness first answered that she remembered finding some loud-smelling medicine but did not know whether it was poison or not, and, upon objection from the appellant, the court excluded the entire -question and answer from the consideration of the jury. The appellant had placed his wife on the stand, and had asked her if she had ever attempted to produce an abortion, and had also had her to testify that there was no medicine on their place that she took to cause an abortion, and that her husband had never brought her any medicine for that purpose, and that; he did not keep any on the place to keep her from having children, and that he did not ask her -not to have any. The appellant having gone into this matter in the manner above indicated, it is not clear to us that the state was not within its right in pursuing the matter and asking her about the medicine found in the yard. In view of the fact, however, that the court excluded the entire matter from the jury, we think it clear that the matter does not present reversible error.

There are many bills of exceptions contained in the- record to the argument of the private prosecutor in the case. In every instance save two, appellant’s objections to the argument were sustained, and the jury was instructed not to consider same. It was also true that in every instance the bills of exceptions were very meager as showing the surroundings under which the argument was made. We have carefully examined each statement objected to, and think it clear that in no instance can the argument that was excluded by the court be said to have been so abusive as to prejudice the case or to have introduced before the jury any facts which were -not already in evidence. On the contrary, they were more or less lurid appeals to the jury to protect the virtue of the young women of Yan Zandt county. In view of the fact that the court sustained objections to each of these arguments and instructed the jury not to consider them, and in view of the further fact that a penalty that’ is not deemed excessive under the facts in this case was assessed by the jury, we decline to say that the arguments excluded were of such a prejudicial nature as to justify us in reversing the case. . .

There are two bills of exceptions taken to the argument which it is necessary to consider separately. The appellant complains because the private prosecutor made the following argument: “Your verdict is not so much to punish him as to deter others.” This bill is qualified by the court with the statement that the argument actually made -by the attorney was that the object of the law is not only to punish the guilty but to deter others from committing like crimes. The argument as explained by the court states a correct legal proposition, and the statement of it before the jury would not constitute reversible error in this case.

By another bill, the appellant complains of the action of the private prosecutor in referring to the defendant as “this lecher, rapist, and seducer.” The court qualifies this bill by stating that the attorney really said “the facts in this case, if believed, make out the defendant a seducer and rapist of the purest flower of womanhood.” As explained’ by tb,e court, this argument was not erroneous under the facts of this case.

Complaint is also made at the action of the court in permitting the state’s counsel to ask many character witnesses the following question: “Do you know the general reputation of the prosecutrix in the community where she lives for chastity and ladylike'conduct?” The defendant objected and excepted to this question being answered, for the reason that there was no predicate laid for the introduction of this testimony; that it was improperly framed, was not’ a proper question ; that the same was prejudicial, inflammatory, and could serve no useful purpose save and except to prejudice the defendant and his defense before the jury; that the question of chastity or ladylike conduct of the .prosecutrix was not an issue; that said question was improperly framed, was immaterial and irrelevant, but the court permitted the witness to answer same. The court, in explaining this bill, states that this testimony was not permitted to be introduced until the defendant had put the prosecutrix’s reputation in issue, and refers to the statement of facts which shows that said reputation had been put in issue. ’ In oral argument before this court, it was virtually conceded by the appellant’s counsel that'the question of chastity was perhaps a pertinent inquiry, but that the question went too far, in that it permitted the state to inquire as, to the ladylike conduct of the prosecutrix. It is not necessary to 'decide in this case as to whether it was. proper for the state to ask concerning the ladylike conduct, as the question of her chastity was a proper inquiry, and the bills of exception do not single out that part of the question that the appellant claims before this court was improper, but the bill objects to the entire question, and, part of it being clearly admissible, the bill of exceptions fails to show any error in refusing to exclude the entire question. If appellant desired to save the point that a part of the question was not admissible, he should have -separated it in his bill of exceptions and •leveled his objections at that part of it'whieh he deemed inadmissible. Having failed to do this, and part of the testimony objected to being admissible, his complaint at the court’s action will be overruled.

There are various objections urged by appellant to the court’s charge, but a careful examination of same convinces us that every right that the appellant had was thoroughly protected in the instructions given by the learned trial' judge to the jury.

Finding no error in the record, it is our opinion 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.

BERRY, J.

In our original opinion in this case we seem clearly to have overlooked one of the most Important and perhaps the controlling question in the case. In passing on the sufficiency of the evidence, we overlooked the fact, in our discussion of the same, that the prosecutrix was more than 15 years of age and less than 18 at the time of the alleged offense. If it were important to do so, we might give some reasonable excuse for this error in our original opinion, but, as was said by Judge Ramsey in Davis v. State, 55 Tex. Cr. R. 500, 117 S. W. 162:

“We have no doubt that á court, whose principal office it is to point out and correct the errors of others, should in all faithfulness and candor openly acknowledge its own.”

We deem it necessary to make the following additional statement of the prosecutrix’s testimony: She fixed the date of the alleged offense at Saturday night between May 10 and 17, 1924. She testified: That she, her 12 year old sister, and her father and mother visited the appellant and his family and spent the night, with them. That before retiring for the night they made ice cream and enjoyed a social hour. That she, her 12 year old sister, and appellant’s oldest child retired for the night and were asleep together in the same bed when the prosecutrix’s father and mother and the appellant and his wife also retired for the night. That she and her 12 year old sister and appellant’s oldest child slept on the same bed, and that they all slept in the same bedroom with the appellant and his wife, and within 6 feet of the bed on which they slept. She further testified that her father and mother slept in an adjoining room in -less than 10 feet of the prosecutrix, and in plain view of her, there being an open door without a shutter between, and she further testified that her father and mother, or either of them, could have seen her at all times had they been awake. After all had retired for the night, she testified that the appellant left the bed of his wife and child and came to her bed and had sexual intercourse with her in the same room where his wife was, and in plain view' of the father and mother of the pros-ecutrix if they were -awake.

Appellant sets out the following testimony of the prosecutrix in his motion, which we quote:

“My father and mother were in the adjoining room with a door there without á shutter, and I guess all they would have had to have done would have been to look to have seen us, if they had wanted to look. I had gone to sleep when he came to my bed and awoke me. He laid his hand on my forehead and called me, and it awoke me. He would have awakened me had he not called me. I don’t know whether his wife was awake or not. My little sister did not wake. Rebb Ayres’ little girl was there, and she did not awake. My father and mother were there, and they did not awake. Don’t you reckon if anybody got down and whispered in your ear and laid their hand on your head, it would wake you up ? He said he wanted to talk to me, and I told him I did not want him to. He whispered to me, and I whispered' back. I told you what was the first thing he said to me. 1-Ie called me and said he wanted to talk to me. I next told him I did not want to talk to him. I did not like him. I did not love him. Why didn’t I scream or holler for help ? Yes; my father was not 10 feet from me, still I did not call for help. Had I called for help I did not know what would have taken place. Yes; I whispered back to him and told him to -go away; he did. not go away. Why didn’t I scream? Why didn’t I do lots of things? When I told him to go away he said he would not do it. He whispered to me. No, sir; I did not have any trouble hearing him. He was right over me. The little girls did not wake up. I tried to push-him off the bed — could I have pushed him off.?, Those little girls did not wake up. When hé said he was not going away I kept telling him to get up and go on. I did not want him to fool with me. I did not count the times I told him. I told him to go away a good many times. Several minutes elapsed during that time. If any one awoke they did not let themselves be known.- All his wife would have had to have done would have been to open her eyes and she could have seen us. Yes; I was doing this with a woman’s husband within 6 feet of her, and I was afraid all the time I was doing it. No; I did not scream. No; that did not suit me at all. I did not want it to happen. .What was the next thipg said there on the pallet when I told him to go away? 'He said he would lay there and talk to me; he then got on the edge of the bed. There were then four in the bed; it did not awaken any one. He said he was going to talk to me, and I told him I did not want to talk to Mm, but he jabbered a long time. Yes; he whispered all the time. Yes; I whispered too. Neither of us got our voice out of a whisper. He talked about first one thing and another until he beg’an talking about something he should not have talked about. He did not talk about current events. He was on the bed just a little bit before he began talking about something he should not have talked .about. My father and mother did not awaken until the next morning. Rebb Ayres asked me if I-had ever done anything ugly, and I told him, ‘No,’ that I did not know what he meant. Well, he could show me better than he could tell me. I told him I did not want him to show me, to go away and leave me alone. I told you that he whispered all the time. He had his left hand between he and I, and had his right hand on my shoulder; he raised my leg up and put it on his. That did not awaken the children. I do not know whether it crowded them at all or not. I did not ask them. I mean to say that we had sexual intercourse there. I never did holler. I did not call for help; if any one awoke they kept themselves quiet. When Rebb Ayres got back in his bed I was afraid to run to my father and say anything. I stayed there that night.”

The prosecutrix’s testimony further shows that after the defendant. returned to his bed there was no outcry made, and she never disclosed what he had done to her to any one until she was about seven months in pregnancy and her condition plainly visible. The record further discloses that the entire family remained at appellant’s house all night, ate breakfast there the next morning, and stayed most of the next day. The testimony of this witness was contradicted in toto by that offered by the appellant. Article 1183, 1925 Revision of the P. C., defines the offense of rape and makes the carnal knowledge of a female under the age of 18 years othen than the wife of the person with. or without her consent and with or without the use of force, threats, or fraud rape. But said article further provides that, if the prosecutrix is 15 years of age or over, the defendant may show in consent cases that she was not of previous chaste character as a defense.

In our original opinion we refused to disturb the verdict of the jury in this case, on the ground that we would not say as a matter of law that the evidence was not sufficient to show that the act of intercourse actually took place as testified to by the prosecutrix, but, in view of the last section of the statute above referred to which makes a lack of chastity a defense, in view of the age of prosecu-trix in this case, we cannot say that the verdict of the jury comports with human experience. We think it absolutely incredible that a chaste woman- could have had intercourse with the appellant under the circumstances detailed by the prosecutrix. A lewd, experienced woman might have done so, but, we refuse to lend our sanction to the conclusion that a virgin could have been deflowered under the circumstances detailed by the pros-ecutrix in this case. “It staggers credulity,” and does not comport with human experience. On fact questions, authorities are of but little value, but we cite the following as tending to support the conclusion reached in this case: Donoghue v. State (Tex. Cr. App.) 79 S. W. 309; Adkins v. State (Tex. Cr. App.) 65 S. W. 924; Kee v. State (Tex. Cr. App.) 65 S. W. 517; Arnett v. State, 40 Tex. Civ. App. 617, 51 S. W. 385; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; Draper v. State (Tex. Cr. App.) 57 S. W. 655; Topo-lanck v. State, 40 Tex. 160; Alcorn v. State (Tex. Cr. App.) 94 S. W. 468.

Believing that the evidence is insufficient to support the verdict, appellant’s motion for rehearing is granted, and the judgment is reversed, and the cause remanded.

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.' 
      
      &wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     