
    MARION v. STATE.
    (No. 4284.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.
    On Motion for Rehearing, Dec. 27, 1916.)
    1. Rape <&wkey;52(l) — Evidence.
    Evidence of complaint and condition of victim, a child of eight, held sufficient to sustain conviction of rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71, 72, 76; Dec. Dig. &wkey;52(l).]
    2. Criminal Law <&wkey;814(10) — Question for Jury — Insanity.
    In rape trial, refusal to submit to the jury accused’s insanity from use of drugs was proper; there being no evidence thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1979, 1981; Dec. Dig. &wkey;814(10).]
    8. Criminal Law &wkey;>814(17)' — Instruction —Circumstantial Evidence.
    In rape-trial, requested instruction on circumstantial evidence was properly refused, although victim did not herself testify, where there was res gestae testimony of condition and complaint of the victim, this being positive testimony.
    [Ed. Note. — For other cases, see Criminal Eaw, Cent. Dig. §§ 1883, 1979; Dec. Dig. &wkey; 814(17).]
    4.Criminal Law <&wkey;665(l), 713 — Segregating Witnesses.
    In trial for rape of accused’s daughter, it was proper for the court to place all his children in custody of an officer, and allow no communication with them, nor comment to the jury by accused’s counsel on such action; it all occurring out of the presence of the jury.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520, 1535, 1663, 1678; Dec. Dig. &wkey;665(l), 713.]
    5. Witnesses <&wkey;244 — Leading Questions.
    In trial for rape of accused’s daughter, it was not error to permit the prosecutor to ask other children of accused leading questions and call their attention to their written and signed testimony before the grand jury and also before the county attorney; these witnesses being hostile to the state and very favorable to accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dee. Dig. <&wkey;>244.]
    6. Criminal Law <&wkey;1169(5) — Harmless Error-Admission oe Evidence — Effect of Withdrawal.
    In rape trial, error in admitting answer to question whether the victim had ever been mistreated before as she was on the occasion of the crime was not reversible, where the court later expressly withdrew all such testimony and charged the jury to entirely disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;>1169(5).J
    7. Rape <&wkey;48(2) — Evidence—Res Gestas.
    In statutory rape trial, testimony of a neighboring woman, called in after the commission of the crime, that the victim told her who the party was who caused her injury, but not stating who this was, was proper; the declaration of the victim at that time not being res geste.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 68; Dec. Dig. <&wkey;48(2).]
    8. Witnesses &wkey;j340(3) — Character — Evidence.
    In rape trial, evidence of misconduct of witness for the state was irrelevant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1121; Dec. Dig. <&wkey;340(3).]
    9. Criminal Law <&wkey;726 — Comment of Counsel.
    In trial for rape of accused’s young daughter where accused’s counsel commented on failure to make the victim a witness, the prosecutor was justified in stating that the jury could see why she was not called from the fact that her little brother, as witness for the state, was caused to change his testimony and swear falsely by his father’s influence; it appearing that the victim was under the same influence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. i&wkey;726.]
    On Motion for Rehearing.
    10. Criminal Law <&wkey;366(l) — Evidence — .Res Gestas.
    Where victim of rape does not herself testify, testimony of res gestae statements by her are not inadmissible, as being secondary or inferior evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 811; Dee. Dig. &wkey;>366(l).]
    11. Witnesses <&wkey;370(2) — Hostility — Evidence.
    Upon trial for rape of accused’s daughter, testimony not tending to show hostility of a daughter, testifying for the state, against accused, but merely such witness’ hostility to another daughter, was irrelevant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. <&wkey;>370(2).]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Hodge Marion was convicted of rape, and appeals.
    Affirmed.
    W. H. Fears and Geo. Hines, both of Waxa-hachie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the rape of his own little daughter, Lelia, 8 years of age, and his penalty was assessed by the jury at death.

The uncontradicted testimony shows that appellant lived in a small house in Waxahachie with three of his children, a daughter Nellie, who was about 12 years of age, his son Carl, about 10 years old, and Lelia, the assaulted girl, about 8 years old. The two little sisters slept in a bed in one room, and appellant and his little boy in another bed in an adjoining room. He had been separated from his wife for several years. On the morning of June 21, 1916, Nellie got up about 5:30, leaving Lelia in the bed, went into the kitchen and made a fire in the stove to cook breakfast. Appellant sent his little boy to town to get bread. As soon as he left, appellant called Lelia to him. Nellie said, as she was not in the room, she didn’t know that Lelia went to her father, but she thought she did. In a few minutes thereafter Lelia came to Nellie, crying; told Nellie to get her clothes for her, which she did, and put them on her. When putting them on, she saw blood running from the privates of Lelia down her leg clear onto the floor. She saw that the blood was coming from her privates. She asked Lelia who had done that, and Lelia told her her papa. The child bled profusely, saturating her own clothes, so that Nellie had to change them a time or two. She put her in bed, and the blood from her saturated the sheet. Fresh blood was also found on the sheet on appellant’s bed that morning. As soon as appellant and his son got their breakfast, they hitched up a buggy and left the house. Soon afterwards Nellie called in some of the neighbor ladies to help her with the child. They did help her. One of them testified that in bathing the child’s private parts, she found on the outside of her privates other substance than blood. It was colored white (evidently semen). They had Nellie to phone for a doctor. The doctor soon arrived, and, making a hasty examination, saw that the little child had been raped, and he testified she bled from her privates profusely. Eater, in' connection with another physician, he examined her thoroughly, and found that her privates had been horribly ruptured. He had to take eight stitches in sewing her up. Shortly after the rape was perpetrated, appellant was arrested. Fresh blood was found on the front of his drawers and his front shirt tail. The state introduced appellant’s written confession, in which he denied raping his daughter, stating she “came to my bed this morning and told me she hurt herself on the picket fence. She had not been out there this morning that I know of.” He said he did not know how the blood got on his bed nor on his drawers and shirt tail; that he was not drinking the night before when he went home. The evidence unquestionably was isufficient to without doubt establish appellant’s guilt. He himself did not testify. Neither did the assaulted girl, Eelia, testify.

Appellant complained that the court should have given his charge submitting the question of his insanity to the jury, caused, as he claimed, by the continued and recent use of cocaine or of cocaine with whisky. The court refused the charge, on the ground that the evidence raised no such issue. We think the court was correct. The evidence raised no such issue which would have authorized or required the court to submit such issue to the jury. In fact, there was no evidence that he had recently taken any cocaine or whisky so as in any way to make him insane therefrom at the time.

Neither did the court err in refusing to give a charge on circumstantial evidence. The testimony of Nellie to the res gestae of the transaction was positive testimony, taking the case out of the rule of depending solely on circumstantial evidence. Kenney v. State, 79 S. W. 817, 65 L. R. A. 316; Croomes v. State, 40 Tex. Cr. R. 675, 51 S. W. 924, 53 S. W. 882; Thomas v. State, 47 Tex. Cr. R. 534, 84 S. W. 823, 122 Am. St. Rep. 712; Neely v. State, 56 S. W. 625; Flores v. State, 79 S. W. 809; Hunter v. State, 54 Tex. Cr. R. 226, 114 S. W. 124, 130 Am. St. Rep. 887; Cook v. State, 22 Tex. App. 525, 3 S. W. 749. And this notwithstanding Lelia, the assaulted girl, did not herself testify. In addition, we think the positive facts proven by Nellie were in such close juxtaposition, showing that appellant raped Lelia, as to be equivalent to direct testimony, so as to make it unnecessary to charge on circumstantial evidence. Holt v. State, 9 Tex. App. 582; Crews v. State, 34 Tex. Cr. R. 543, 31 S. W. 373; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Bass v. State, 59 Tex. Cr. R. 191, 127 S. W. 1020; 2 Branch’s An. P. C. pp. 1039, 1040; White’s An. C. C. P. § 813, subd. 3, and authorities collated by Judge White.

Appellant has some complaints to the action of the trial judge in placing appellant’s small children, Nellie, Carl and Lelia, into the custody of one of the officers of the court, during the trial with instructions to permit no one to talk to either of them about the case except in the presence of an officer, and in not permitting appellant’s counsel, in argument to the jury, to state and comment on this action of the court, it all occurring out of the presence and hearing of the jury. As explained by the court in allowing his bills, this action by the court presents no error. On the contrary, the action of the court was commendable.

Appellant has some other bills, complaining of the action of the court in permitting the county attorney to ask Nellie, and Carl also, what might be termed “leading questions” and in calling their attention to their testimony in writing, and signed by them before the grand jury and also before the county attorney. All these matters, as explained by the court in his qualification of appellant’s bills, which were accepted by him and about which there seems to be no question, show no error. Each of these witnesses, as explained, was hostile to the state, and very much in favor of their father — so much so that it is clear each of them did all they could to avoid testifying to the facts when against their father and in favor of the state. It is unnecessary to cite the authorities on this question.

The state asked Nellie, in substance, whether or not Lelia had ever been mistreated before in the way she was on this occasion. It seems the state was undertaking to show that this was a fact, and that appellant was the cause thereof on the previous occasion. At the time this question was asked Nellie, appellant objected to it, and, after she testified, moved to strike it out, but the court declined to do so at that time, in effect holding that, unless later connected up, he would exclude it. After the testimony was concluded, the court expressly withdrew all of it from the jury, and charged them positively to consider it for no purpose whatever. As explained by the court in the bills, this matter presents no. reversible error, as this court lias many times held. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 926, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 66 S. W. 97; Robinson v. State, 63 S. W. 869; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 342; Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Miller v. State, 186 S. W. 38.

The court did not err in permitting Mrs. Franklin, the neighbor lady whom Nellie called in to assist her with Lelia, to testify that Lelia told her who the party was who had caused her injury. The court did not permit the witness to tell who Lelia said this was, because her declaration at that time was not res gestee. See eases collated in 2 Branch’s An. P. O. p. 1001.

Appellant complained of the action of the court in refusing to permit Nellie’s older sister, Genie, to detail at considerable length, as shown by the bill, Nellie’s conduct with one Peray. This, as we think, was irrelevant to any legitimate issue in the case. It is unnecessary to further state or discuss it.

The record in many ways shows that the assaulted girl Lelia would neither testify nor talk to nor tell the attorneys, for either defendant or the state, the facts, or anything she would testify; in effect that she would not testify at all. Neither side introduced her or placed her on the stand. Under the circumstances, the statement by the county attorney in argument to the jury, to the effect that they could see the reason why he did not put her on the stand, as the jury easily saw, when he put the little boy on the stand, how he, owing to the influences of his father, was caused to change’ his testimony and attempt to clear his father by swearing falsely, presents no reversible error. An examination of the boy’s testimony clearly justified such an inference as the county attorney stated shown above as to him, and, as stated by the county attorney, the jury doubtless could not help but see the reason she was not placed on the stand. The appellant attempted to make capital of the fact that the state did not place the girl Lelia upon the stand.

We have thoroughly considered the record in full and all of appellant’s assigned errors. We are forcibly impressed with the fact that appellant had a fair and impartial trial; that his guilt was established without any doubt, and that his outraging his little innocent 8 year old daughter, horribly mangling her person in ravishing her, justified the jury to assess the death penalty; and, as the matters are presented, we cannot do otherwise than affirm this judgment, which is ordered.

The judgment is affirmed.

HARPER, J., absent.

On Motion for Rehearing.

PRENDERGAST, P. J.

Appellant now contends that the res gestee statements of Lelia, testified to by Nellie, was secondary evidence, and inadmissible because the child Lelia herself did not testify, contending that her testimony would have been the best and primary evidence, and that Nellie’s was secondary or inferior. He is mistaken in his contention. Res gestee testimony is not secondary or inferior testimony. Presiding Judge White, in Cook v. State, 22 Tex. App. 526, 3 S. W. 749, says: “This rule as to res gestae overrides all other rules known to the law governing the admissibility of testimony;” and in that case held that the res gestae declarations of the wife were admissible against her husband, notwithstanding the statute which prohibits the wife from testifying against the husband. Robbins v. State, 73 Tex. Cr. R. 367, 166 S. W. 529; Shamblin v. State, 75 Tex. Cr. R. 498, 171 S. W. 718. The reason the child Lelia did not testify was explained in the original opinion.

The offered testimony of Genie Marion which was excluded by the court did not show, or tend to show, any hostility, bias, or otherwise, affecting Nellie against her father. It would only have tended to have shown that she may have had some animosity against her sister Genie, but under no phase of the case was it admissible to show that Nellie had any feeling at all against her sister Genie. That had nothing to do with any issue in the case.

We have again examined the case thoroughly; and, as explained in the original opinion, the argument of the county attorney objected to, we are still of the opinion, showed no error against appellant, and we are of the opinion still that the testimony was not of sufficient force to show, or tend to show, that appellant was insane at or about the time he committed the alleged act. Therefore the court’s action in refusing to charge on insanity was undoubtedly correct, and we think there can be no question but that under the law it was neither necessary nor proper for the court to have given a charge on circumstantial evidence.

The motion is therefore overruled. 
      @=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     