
    BURGE v. STATE.
    (No. 3062.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 13, 1914.)
    1. Witnesses (§ 330) — Cross-Examination— Extent.
    Accused, on the cross-examination of a ■witness giving material testimony against him, may show any fact affecting credibility of the witness.
    [Ed. Note. — For other eases, see Witnesses, Gent. Dig. §§ 1106-1108; Dee. Dig. § 330 1
    2. Witnesses (§ 270) — Cross-examination-Extent.
    Where a witness for the state, on a trial for rape, testified that accused had paid a specified sum to the husband of prosecutrix to keep her from attending court, and that the husband gave the witness a. fourth thereof, and that prosecutrix had filed suit against accused for damages, and the witness stated that there was no agreement that he should receive any part of the damages recovered, a question on cross-examination as to whether he did not think he was entitled to a part thereof was properly excluded.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. § 270.]
    3. Rape (§ 38) — Evidence—Admissibility:.
    Where, -on a trial for rape, prosecutrix testified to a case of rape., and accused denied that he had had at any time intercourse with prosecutrix, and there were no facts showing that he had raped her, except the testimony of prosecutrix, and a physician testified that one in the position of prosecutrix, as testified to by her, could not be raped without evidence of physical violence, of which there was none, testimony that in his opinion one could not rape a woman in that position without her consent was properly excluded.
    [Ed. Note. — For other eases, see Rape, Cent. Dig! §§ 4S-501; Dec. Dig. § 38.]
    4. Criminal Law (§ 925%) — Misconduct oe Jury — Evidence.
    Where the evidence of all the jurors showed that there was no discussion of accused’s former conviction, though one juror incidentally mentioned the fact, there was no misconduct of the jurors warranting the setting aside of a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. § 925%.]
    5. Ceiminae Law (§ 925%) — Misconduct oe Jury — Evidence.
    Where, after the jurors had agreed on a verdict, one of the jurors remarked that accused had once separated a man and his wife, and the punishment fixed by the jury was less than that fixed by the jury on a former trial, there was no misconduct justifying the setting aside of the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. § 925%.]
    6. Rape (§ 51) — Evidence — Conduct oe Prosecutrix.
    The failure of prosecutrix to make outcry or call for aid, when it may be readily obtained, or within reasonable time to disclose the offense after an opportunity to do so, tends to discredit her testimony.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 51.]
    7. Rape (§ 43) — Evidence — Conduct oe Prosecutrix.
    The appearance of prosecutrix about four hours after the alleged rape of her, and that she then made complaint, may be proved.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    8. Rape (§ 43) — Evidence — Conduct oe Prosecutrix.
    Where prosecutrix made complaint about four hours after the occurrence, it was proper to permit the persons, to whom she made complaint, to testify as to her condition, and that she was in a wrecked, nervous condition on the Sunday afternoon following the offense on the preceding Friday morning.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    9. Criminal Law (§ 338) — Evidence—Admissibility.
    Where accused, charged with rape, informed a third person that accused’s son was acting for him, using money given him by accused, and that the third person would obtain instructions from the son, the acts of the son, done under the directions of accused, were admissible against him, though the acts were not in the presence of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 33S.]
    10. Rape (§ 59) — Evidence—Instructions.
    Where there was no evidence that the intercourse was by the consent of prosecutrix, and the court charged that, if the jury had a reasonable doubt as to whether prosecutrix consented, accused should be acquitted, refusal to charge that consent would be presumed until the state proved the contract was proper.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    11. Criminal Law (§ 1169) — Evidence — Harmless Error.
    The testimony of prosecutrix, raped at the home of accused, that she responded to the advertisement of accused for a housekeeper, and presented recommendations, and asked accused for recommendations, stating that she was a lady and wanted to go to a nice place and that he furnished good recommendations, was not prejudicial to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    12. Criminal Law (§ 1166%) — Harmless-Error — ^Trial—Misconduct oe Parties.
    The act of the court in permitting prose-cutrix, on a trial for rape, to remain in the presence of the jury during the argument of the prosecuting attorney was not prejudicial, though prosecutrix cried during the argument, but not loud enough to interrupt the orderly proceedings of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    On Motion for Rehearing.
    13. Witnesses (§ 372) — Cross-Examination —Interest—Bias—Motive.
    The motive of a witness and his interest or bias may be shown on his cross-examination.
    [Ed. Note. — For other cases, see Witnesses,, Cent. Dig. §§ 1192-1199; Dee. Dig. § 372.]
    14. Criminal Law (§ 1038) — Instructions— Objections — Review.
    Under Acts 33d Leg. c. 138, providing that objections to instructions shall be presented to the trial court, an objection to instructions cannot be raised for the first time on motion for rehearing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    15. Criminal Law (§ 507) — Accomplices.
    A witness is not an accomplice merely because he received from accused a specified sum to procure prosecutrix to write a letter asking for the dismissal of the prosecution for rape, or merely because he obtained a part of the amount so paid.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.*]
    Davidson, J., dissenting.
    Appeal from District Court, Collin County ; F. E. Wilcox, Special Judge.
    Ed Burge was convicted of rape, and he appeals.
    Affirmed.
    G. R. Smith and W. R. Abernathy, both of BlcKinney, for appellant. L. J. Truett, Co. Atty., and Sam Nethery, Asst. Co. Atty., both of McKinney, and C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of rape by force, and his punishment assessed at seven years’ confinement in the state penitentiary.

The record is rather voluminous, and, in passing on the questions presented, we will take them up in the order discussed in appellant’s brief and in their able oral argument before this court. He first discusses at length the improbability of the testimony for the state being true, and, while admitting that Mrs. Vaden testifies to facts which show that she was raped by appellant, yet it is insisted that the offense could not have been committed in the way testified to by her. Enough of the testimony will hereinafter be stated to show, we think, this contention ought not be sustained by us.

The next contention is; “When the state has introduced a witness, who is a material witness for the state, and who testifies to material and prejudicial facts against the defendant, such defendant, on cross-examination, has the right to show any fact or circumstance which will affect the credit of the witness before the jury.” This is a sound proposition of law, and, if the court had -excluded any such testimony, it would be error. J. M. Matthews was a most material witness for the state, and testified, among other things, to appellant paying or causing to be paid to the husband of Mrs. Vaden $750 to keep her from attending court and testifying against him; the court permitted it to be shown that the husband of Mrs. Vaden gave him (Matthews) one-fourth of this amount. Appellant then developed that, in addition to having this prosecution brought, Mrs. Vaden had filed a suit against appellant for $50,000 damages. In cross-examination of Matthews, appellant asked him if he (Matthews) was going to get one-fourth or a child’s part of the amount sued for and recovered as damages, to which question Matthews answered “No.” Appellant then asked him if he did not think he was entitled to it. Whatever may have been the witness’ opinion as'to what he thought he ought to be entitled to would be inadmissible, when he answered he was not going to get any part of it. Matthews was in no way related to Mrs. Vaden, and as a matter of law was not entitled and could recover no part of any sum that Mrs. Vaden might get, if anything; and, as he had testified that there was no agreement or understanding that he was to be given any part of it, his opinion about what Mrs. Vaden ought to do in case she recovered would not be legitimate testimony.

Dr. T. W. Wiley, after qualifying as an expert, in answer to a hypothetical question had testified that a woman in the position stated, and under the circumstances enumerated, could not be raped without, leaving evidence of physical violence on her person, and he was then asked if a man could have carnal intercourse with a woman in that position with her consent, and it is shown by the bill that he would have answered that he could not. In this case there was no question of intercourse by consent. Mrs. Vaden testified to a case of rape; appellant testified that he at this time nor at any other time had never had intercourse with Mrs. Vaden, and there were no facts and circumstances showing that he had intercourse with her, unless the version of Mrs. Vaden be accepted as true; and, the doctor having testified that in his opinion the act could not have taken place without leaving marks of physical violence (there being no marks of violence on Mrs. Vaden), the court did not err in his ruling. The record discloses that the doctor testified: “In my opinion, a woman raped under those circumstances, without marks of physical violence upon her person', would have to consent. In my judgment she could not be raped without marks of physical violence upon her.”

In the fourth and fifth assignments in the brief are presented the questions that the jury received other and additional testimony after they retired, and discussed the former conviction of appellant. When the motion for a new trial was heard, each juryman was called and testified, and each and all virtually agree that nothing of this character took place until after the vote had been taken in which they all agreed upon appellant’s guilt. Some of the jurymen testify that, before, they had agreed on the term of punishment to be assessed, one of the jurymen, a Mr. Crockett, remarked that he was surprised that appellant took him on the jury; that appellant was aware that he (the juryman) knew that he (appellant) had separated a man and his wife prior to this time. Some of the jurymen say that this was before the verdict was finally arrived at; some say that it was after the verdict was reached,, but before it was returned into court; and some say that it was after the verdict was rendered and the jury discharged, and that the' remark was made by Mr. Crockett while they were on the way downstairs; but each and all of them testify it had no influence on any of them. Appellant does not contest the fact that he knew Mr. Crockett was aware of the circumstance mentioned, prior to the time he accepted him on the jury. Each juryman was called on to testify as to what was said about the prior verdict. One of the jurymen testified that some one remarked about appellant having been formerly convicted and had been sentenced to ten years in the peni-, tentiary (that is, asked if this was not the case in which he had been formerly convicted), when the foreman promptly instructed them that this could not be considered, and they must not discuss it. A majority of the jury testify they heard no such remark, and all of them say that it was not discussed, and no attention was paid to the matter. While several testify that before going on the jury they knew appellant was convicted on the former trial, they state that on their examination, when asked, they so informed appellant’s counsel. The record discloses that on the former trial appellant received a sentence of ten years, while on this trial he. gets only seven. It may be said that the evidence of all the jurymen discloses there was no discussion of the former conviction, although it may have been incidentally mentioned by one juryman, who was at once informed that this matter must not be discussed nor considered, and they all say it was not discussed nor considered. If it had been discussed, of course we would not be inclined to inquire into whether it had weight or not; but inasmuch as all say it was not discussed by any of them, but at most only incidently mentioned in the nature of a query, this presents no error.

As to the remark of Mr. Crockett, it is practically certain that it was made after the jury had all agreed on the guilt of defendant, if in fact it was not made after the jury was discharged, as contended by Mr. Crockett and some others. When they began a discussion of the penalty, four were for 5 years’, while the remaining eight were for various numbers of years up to 20 years’, confinement in the penitentiary; and, instead of it appearing that the four were caused (if the remark was made prior to the time the punishment was agreed on) to increase the number of years from what they first thought proper very much, those for a greater number of years afterwards came down considerably more than they were led to increase the punishment. In the case of Arnwine v. State, 54 Tex. Cr. R. 219, 114 S. W. 796, the matters were carried much further than in this case, and it was held not to present reversible error. The mention of these matters in this case did not induce them to find appellant guilty, for they had already done so before these facts were mentioned, as shown by the testimony. The mention of the number of years given appellant did not influence them apparently, for they proceeded to give him less than on the former trial, and they nearly all swear they did not hear the query when made about the former conviction, and those who say they did hear it say it did not influence them and was not considered by any one in arriving at the number of years of punishment; and a majority of the jury say the remark of Mr. Crockett was made after the verdict was reached, and all say it was not discussed, and all say it did not influence them in the least, and the punishment bears evidence of this fact.

The propositions presented by the sixth, seventh, eighth, ninth, and tenth assignments of error present to us a serious question, and one to which we have given much thought and study. In the case of Pefferling v. State, 40 Tex. 487, it was held: “In prosecutions of this character, the proof of the offense depends very frequently upon the testimony of the party charged to have been outraged, and in most cases, to a very great extent, upon the truth and credibility of her evidence, and unquestionably every reasonable test should be applied to her integrity, for the safety' of the accused. Hence the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discoyer the offense after an opportunity to do so are circumstances tending to discredit her testimony. But, if the absence of these circumstances tend to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence.” The rule thus announced by Judge Moore has been adhered to in an unbroken line of decisions, so far as we have been able to ascertain, and therein it is announced that the particulars she detailed cannot be given, unless they come within the rules governing res gestae testimony, and in this case the witness was not permitted to do so, but a person will be permitted to testify as to her state and appearance.,

In this case it is shown that, if the rape occurred, it was between 7 and 8 o’clock in the morning, and the appellant developed that Mrs. Vaden remained at appellant’s farm, where she was housekeeper, until after she had gotten dinner, and did not report the matter to any one until after 12 o’clock. To meet this the state proved that Mrs. Vaden had sent word to Mrs. Matthews asking her to come to see her. Mrs. Vaden testified she was afraid to leave the place until appellant bad gone away; that she knew he was going to leave as he had told her to get early dinner because he was in a hurry to get off; that, as soon-as he left,' she went to the house of Mrs. Matthews and there made the first complaint, and then went to the telephone and reported the matter. Mrs. Matthews was permitted to testify that when Mrs. Vaden arrived at her house she made complaint to her; that she was crying, jerking, and very nervous; that Mrs. Vaden remained at her house until Sunday, and she remained in that condition while she was there. J. P. Carter was permitted to testify that about noon on the day of the alleged assault she came to the store to telephone and was sniffing and crying. J. M. Matthews was permitted to testify that when he returned home that evening Mrs. Vaden was at his house, and remained there until Sunday evening, when she went to Bob Smith’s; that when he got home he saw Mrs. Vaden; that her face was red and swollen; that she was crying and trembling and very nervous,-and she remained in that condition until she left his home on Sunday evening. Bob Smith was permitted to testify that when Mrs. Vaden arrived at his house Sunday evening she appeared to be in “wrecked, nervous condition.” All this testimony was objected to by appellant, and we may say that the testimony of the witnesses cover a period of two days after the alleged assault; that of Mrs. Matthews and Mr. Carter relating to a time about three or four hours after the alleged offense, and that of the other witnesses tending to show this condition of nervousness, etc., continued for that length of time. We do not think it can be seriously contended that evidence of the appearance of Mrs. Vaden’s state and appearance when she complained to Airs. Matthews, and Mr. Carter saw her, is not admissible. Certainly this much is admissible under all the authorities from this state cited in appellant’s brief.

The only serious question presented is: Was it permissible for Airs. Alatthews to testify that that condition continued to exist from Friday afternoon until she left Sunday afternoon, and was it permissible for Mr. Alatthews to testify that this was her condition when he saw her late Friday evening, and that it continued until Sunday afternoon (that is, all the time she remained at his house), and was it permissible for Mr. Smith to testify that she was in a “wrecked, nervous condition” when she arrived at his home Sunday afternoon? If there had been marks of physical violence on her, and each of these witnesses saw this evidence of physical violence on her at these various periods of time, there can be no question that the testimony would be admissible; if there had been rents in her clothing, and these witnesses saw the tear at the various times mentioned, it would be admissible; and if there was force used on her person, although it did not tear her clothing or make marks on her person visible to the eye, yet the violence used to her person was of that nature to outrage the feelings of a chaste female, produce, as human experience teaches us would be the case in a case of rape by force on a refined and pure woman, a state of nervousness visible to the eye, and the shame and humiliation of it should cause her to shed tears and tremble, why is not such testimony admissible? And if the shock is of that severe character that she remained in this distraught, nervous condition for two days, is not that fact also admissible in evidence? This lady may be a consummate actress, as contended by appellant’s able counsel before this court, and these evidences of a nervous, distraught condition but assumed by her, yet, without positive evidence of such fact, shall we say that such is the fact and the testimony inadmissible? The fact that she remained at the house for three or four hours, and did not report the matter until she arrived at Mrs. Matthews’ home, might present a state of facts upon which appellant’s counsel could base a cogent argument to the jury that her condition and state were assumed, and the tears shed were not occasioned by outraged feeling, but was but the play of a designing woman, but this would go to its weight and not to its admissibility. We know of no act that would more completely shock a modest female than to forcibly violate her person, and the pain and humiliation caused by such act is calculated to produce a nervous condition that may last this length of time. Of course, we are not passing on the genuineness of this state of mind in Mrs. Vaden; that was for the jury under the evidence. She was rigidly cross-examined; her life inquired into for a number of years; her misfortunes in the marital state exposed; and the question of whether or not she was of that character and nature of a woman that such an act, if committed, would naturally produce the condition testified to by the witnesses we are satisfied was all ably argued to the jury, based upon this character of testimony.

The time Mrs. Matthews and Mr. Carter first saw her was not too remote from the transaction to render the testimony inadmissible, and, they having so testified, we think it permissible for the state to show that this state continued for a reasonable length of time.

J. M. Matthews testified he was a tenant on appellant’s place, and after testifying to the condition of Mrs. Vaden (then Mrs. Proctor), on the day of the alleged offense, and in regard to the several conversations he had with appellant, among other things, testified: “I think the next conversation we had on it was in October, and at that time he asked me if we didn’t correspond with this lady (that is, if my wife and I didn’t correspond with Mrs. Proctor), and I told him that we did. And he asked when we had heard from her, and I told him my wife had a letter from her a few days previous to that, and he wanted to know if I didn’t think I could square the thing np for him, and I told him I didn’t think X could; that was the way the conversation started. He said he thought I could, and insisted on it, and I told him I would do what I could, and he wanted me to go to Hillsboro, and I went. I went to see if I could effect a compromise in any way and get it out of court. In that connection he said he didn’t want to be mixed up in it much; that Clyde was his overseer out there; that he had turned the business over to Clyde, and Clyde was boss. He said whatever Clyde said was all right; that he would make Clyde his agent, and I was to get my instruction from Clyde, and he would give them to Clyde. Clyde and Mr. Burge both furnished me the means to go to Hillsboro. The first trip to Hillsboro, that I made, Clyde furnished me $10 and Mr. Burge furnished me the rest, which was $2. I told the defendant, Mr. Burge, that I would have to have some clothes to wear down there, and he told me to come and go with him and get them, and he took me to a store over here on the northeast corner of the square, what used to be called the Mississippi Store, where that building fell down, and introduced me to one of the clerks, whom he called Ben Estes, and told him to let me have what I wanted. I got a suit of clothes, pair of shoes, shirt, collar, and tie, I believe, and those goods cost $17.80. I went by myself to Hillsboro, and when I got down there I went to see Mrs. Yaden. I saw Mr. Vaden first and told him I was down there looking for a job, and he told me that I could probably get a job there with the Katy, and the case was brought up, and I told him that I thought Mr. Burge was anxious to get the case out of court. That was all that I told him at that time. I did not make any arrangements with him with regard to the matter at that time. After I talked with him I went out to his house and saw Mrs. Vaden, and, after she made some statement to me, then I made her a statement with regard to the case. We got to talking about the case, and said that Mr. Vaden objected to her coming to court, and set his foot down on it that she couldn’t come, and she asked me what she should do about it. I told her I was incapable of advising her, but it seemed that she had a good home and a good man, and, to keep down family trouble, if they could keep things squared up some way it might be best for her, and she said that she didn’t know what about it. And that if Mr. Burge would not appear against her son Barney (wherein Barney was charged with assaulting appellant because of this matter) that she would not appear against him, and she said that, if she could get the county attorney to dismiss the case that under the circumstances, she might agree to it She did not say anything else in that connection; yes, she did say if she could get the case dismissed and save her character that is all that she would care about. That is all that happened the first trip. The second trip Clyde spoke to me about that, and Mr. Burge did not speak to me about the second trip; Clyde said- that I must go back and see further, and I came back and reported the condition of affairs, and it wasn’t very satisfactory. I made the report to both of them when I came back the first trip, and I don’t think the defendant said anything in that connection. With reference to the second trip, Clyde said I must go back and get something more definite; that they didn’t know what to do about that, and for me to go back and find out what they would do, if she would sign some papers or would leave the state, or, if she would leave the state, how much money she wanted to leave the state, and I was authorized to tell her that they would not appear against the boy (that is, against Barney Young, her son). That conversation was with Clyde, and Clyde furnished the money to go down there that trip; I don’t remember how much money he furnished, but I think, though, it was $12. I went by myself. When I got down there I went to see Mr. and Mrs. Vaden, and I told them that they were anxious to get it settled, and I thought Mr. Burge would agree to terms not to appear against the boy, and that was about all there was to tell them; they just sent me down there to find out what the other side would do and get the other side to make a proposition. Mrs. Vaden said she would not leave the state under any circumstances, and the only way they could get the case dismissed would be for them not to appear against Barney, for Mr. Burge not to appear against Barney, and for the county attorney to dismiss the case and save her character. When I came back X reported to Clyde; I don’t think I reported to Mr. Burge that time. The next time Clyde went with me, and Clyde paid my expenses on that third trip. I. do not know how much the expenses were. The expenses, I think, of the third trip was $12. I do not remember what was said between me and Clyde, before we started on that third trip, more than he just wanted me to go along with him and give him an introduction to them and kind of go along as giving him an excuse for going. At that time I think we left McKinney over here at the Interurban from the station; I think so; I am not sure; there were several times we did not leave from the station, and I don’t know that might have been one of the times. When we got down there Clyde and I went to the store, and I introduced him to Mr. Vaden, and they talked the case over (I didn’t hear all that was said), and then we went out to the house. I did not hear all that was said between Clyde and Mr. Vaden. We went to the house, and Mrs. Vaden came in, and Clyde wanted her to sign papers stating that what she had his father charged with wasn’t so, and wanted her to leave the state. She said she wouldn’t leave the state and would not sign the papers stating that it wasn’t, and said that it was so. I don’t remember anything else that occurred, I don’t believe. He had a paper there with him for her to sign; I do not know who wrote it, but it was typewritten. I only have his word for who wrote it; he said their lawyers wrote it. When we came back he made a report, but I was not with him. I do not remember under what circumstances the fourth trip was made, but Clyde and I made it; on the fourth trip I met Clyde in Ft. Worth. I went from here to Ft. Worth; that was my instructions that I was to meet him in Ft. Worth. He had given me my instructions before I started. He gave me the instructions personally; he told me. I don’t think he went ahead of me, but think he followed. He gave me the instructions out there on the place. I took the car here in McKinney. I beat him to Ft. Worth; I don’t know whether he left here first or 1 left first, but Ubeat him to Ft. Worth. After he and I met in Ft. Worth we went to Hillsboro. He paid my expenses on that trip, but I do not know how much it was; he gave me $8 to start with here, and after I met him in Ft. Worth he paid all expenses from there on, tickets, etc. When we went to Hillsboro that time we went out to Mr. and Mrs. Yaden’s house again, and he had another paper for her to sign, and she refused to sign it. I do not know what the papei contained. Practically the same things were said that were said on the other trips; he still wanted her to leave the state, and she refused to go. We did not accomplish anything by that fourth trip. He and I came back together, and I presume when we came back Clyde reported. I do not remember how many trips we made in all. On the fifth trip, I think it was the fifth trip, I am not positive, but I believe • it was the fifth trip that we went over there to see about getting it dismissed that Mr. Yaden came back with us. I am almost sure it was the fifth trip that we went over there that Mr. Vaden came back with us. Clyde and I went on that fifth trip and went from here. X do not know whether we took the car here or at Melissa or on the hill. By on the hill I mean up there by the nursery on the hill; we took .the car down there one time. When we took the car up there on the hill by nursery we went around kind of back way to get to that place from the square (I don’t know what the street was), and we walked. That is, Clyde and I did that, and took the car down there. We went around the back way to take the car. Clyde paid my way down there that time. We accomplished practically nothing on that trip, only got Mr. Vaden to come back with us. Vaden failed to get the case dismissed; the county attorney would not dismiss it; and Vaden made the remark that he guessed the thing was all off, that he would hire some lawyers and fight it, and Clyde told him that would never do, and I left them at that time and don’t know what else transpired. A while after that they called me to witness trade that they had made, and Clyde was to give Mr. Vaden $750 for him not to employ an additional attorney and $1,500 if he could get the case dismissed. He was to pay him $750 down that night, take it to Hillsboro, and I was to be given $750 to hold until the ease was dismissed, and, if it was dismissed, it went to Mr. Vaden, and, if not dismissed, it went back to Clyde. That was the agreement made between them, in my presence, and they called me to witness it. There was nothing said about where the money was to come from, only Clyde was to deliver it at Hillsboro that night. Clyde went to a bank over on the west side of the square to get the money. Clyde wanted me to go with him; and I told him it wasn’t necessary for me to go; and he said, ‘Yes, the old man wants you to go;’ and I presume he had reference „to his father; and I told him all right, I would go; and I says, ‘Lets go;’ and he says, ‘Well, I have got to see the old man before I can go.’ I saw him go to the bank; that is, Clyde, and his father was with him. The defendant went with Clyde to the bank. When Clyde came out of the bank he came over on the corner where I was, and slapped his pocket, and says, ‘I have got her; let’s go.’ We went back upon the hill that time to leave and left at the nursery south of town. Mr. Vaden was not with us; he had already left. I do not know where he took the car. He and I did not go back together. Clyde and I left here between 4 and 5 o’clock, the best of my recollection, and got to Hillsboro that night about 11 o’clock, and went to Mr. Vaden’s house. They were up when we got there; they were fussing, and Mrs. Vaden was crying; and Clyde asked her what the trouble was; and she told him that Mr. Vaden had written a letter, and she was to copy it, and he had put a phrase in there that she didn’t want, that wasn’t so, and she didn’t want to copy it; and they talked over that a while, and finally got it squared up; and Clyde and Mr. Vaden went out on the front and talked a while, and Mr. Vaden come back to the house, and Clyde called me out, and says, ‘What do you think about the way this woman is doing?’ and I says, ‘I don’t know;’ and he says, ‘Do you think she will go to court?’ and I says, ‘I think she will;’ and he says, ‘What do you think about Vaden; do you think he will do what he says he will?’ and I says, ‘Yes, I think he-will; I believe he is a truthful man.’ And he says, ‘I am going to take a shot at the dark; I am going to let him have the money;’ and he handed the package to me, and says, ‘Give this to him.’ And I motioned to Vaden, and he followed me into the dining room, and I laid the package on the table.” It contained $750.

He also testified that he went to Oklahoma, at Clyde’s instance, during one term of court to get out of the way so the case could not be tried that term, and appellant paid his expenses; that at another term of court Clyde gave his wife $25, and she got out of the way. All this testimony was objected to by appellant; but as this witness testified that appellant, in his talk with him, told him to do whatever his son Clyde said, that C-iydr was the boss, and it further appearing by the record that appellant delivered the $750 to Clyde, and had paid the witness’ expenses at times in person, furnished clothing, etc., the testimony was admissible. At appellant’s request the court instructed the jury: “You are instructed that before you would be entitled to consider or weigh in any way the evidence of any act, statement, or declaration made or done by the witness Matthews at the instance or under the instructions of Clyde Burge, and not in the presence of the defendant, you must find and believe from the evidence beyond a reasonable doubt that the defendant, Ed Burge, told the said witness Matthews in substance for him to follow the instructions of Clyde Burge; that he (defendant) was backing Clyde Burge; and, if you have a reasonable doubt as to whether such statements was made by the defendant, then you are instructed that you will not consider as evidence in this case any statement, act, or declaration made or done by the witness Matthews at the instance or request of Clyde Burge not in the presence of the defendant, Ed Burge.” And at his request he further instructed the jury: “You are instructed that before you would be entitled to weigh or consider any of the acts, statements, or declarations of Clyde Burge offered in evidence in this case, not made in the presence of the defendant, Ed Burge, you must find and believe from the evidence, beyond a reasonable doubt, that the defendant, Ed Burge, stated to the witness Matthews in substance for him to follow the instructions of Clyde Burge, and that he (defendant) had given Clyde Burge instructions, and that he would stand behind whatever Clyde Burge did; and you are instructed that, if you have a reasonable doubt as to whether such statement was so made, then you are instructed that you cannot and will not consider any statement, act, or declaration of the said Clyde Burge, made out of the presence of the defendant, for any purpose whatever in this case.”

These two charges it was proper to give, and, the court having given them, there was no error in admitting the testimony of Mr. Matthews that was objected to. Neither did the court err in refusing to give the two charges instructing the jury not to consider this testimony for any purpose. If his son Clyde was acting for appellant, using money given him by appellant, and appellant had prior thereto told the witness, that Clyde had charge of the matter, that he (appellant) had made him his a'gent, and the witness was to get his instructions from Clyde, then the acts done under the direction of Clyde would be admissible against appellant.

Neither was it proper for the court to instruct the jury that, if they found that ai> pelJant had carnal knowledge of Mrs. Yaden, then her consent would be presumed until the state proved, beyond any reasonable doubt, that she used all means in her power to prevent it. As hereinbefore stated, there was no evidence to show an act of carnal intercourse by consent; yet, out of abundance of precaution in addition to instructing the jury as to presumption of innocence and reasonable doubt in appellant’s favor, he also instructed the jury: “If you find and believe from the evidence beyond a reasonable doubt that the defendant, Ed Burge, had carnal knowledge of the said Ophelia Proctor on the 19th day of May, 1911, but you have a reasonable doubt from the evidence whether or not such carnal knowledge was without her consent and against her will, or if you have a reasonable doubt from the evidence whether or not said Ophelia Proctor used every means within her power to prevent defendant from having intercourse with her, if he did, taking into consideration the relative strength of the parties and all of the other facts and circumstances in the case, then in either event you will acquit the defendant and say by your verdict not guilty.” The only other special charge requested was fully covered by the court in his main charge.

It appears from the record that Mrs. Vaden (then Mrs. Proctor) advertised for a position as housekeeper; that, in answer to that advertisement, appellant called to see her and a trade was made. In detailing' the conversation she said, as shown by a bill: “At the time that I made the arrangement with Mr. Burge to go to his place as his housekeeper, I showed him my recommendation and asked him for recommendations, and the man that was a writer, I suppose for the paper, recommended him very highly; that is the ouly one that I remember that recommended him. I told Mr. Burge the reason I wanted recommendations was that I was a lady and wanted to go to a nice place.” This testimony was offered to show why the prosecuting witness was on appellant’s place; that she testified that appellant was highly recommended to her certainly was not hurtful but beneficial to appellant; and the statement that she in that conversation told him she “was a lady and wanted to go to a nice place” would have no tendency to prove that appellant subsequent to that time raped her. It was but a recitation of a conversation that took place between them at the time of her employment, and the same facts were in substance testified to by appellant, and this bill presents no reversible error.

The only other question presented in the able and lengthy brief is that, while the private prosecutor was addressing the jury, Mrs. Yaden was sitting in plain view and hearing of the jury, and cried. It is further shown that at the former trial she had cried, an<j appellant’s counsel called the court’s attention to this matter and asked that she be not permitted to remain in the presence and sight of the jury. ■ The court, in approving the bill, states that Mrs. Vaden did cry sufficiently loud for the jury to have heard her, but not loud enough nor in a manner to interrupt the orderly proceedings of the court. It is well known by all members of the bar, and all the courts, that witnesses both for the state and defendant gather about' during the argument of counsel; that they sometimes cry, and even counsel, in presenting the cases to the jury, are sometimes moved to tears. And at times eloquent counsel have even elicited tears from the jury trying the case; but, if these demonstrations are not of that character as to disturb the proceedings of the court, it is seldom the court seeks to control such matters. As qualified and approved by the court, it is a matter that we would not feel called upon to hold that the trial judge had abused the discretion confided by law to him.

There are other matters presented by the record, but these are all the questions deemed o'f sufficient importance to be included in appellant’s brief; and, while we have not discussed the others, they are questions of similar import to those herein acted on, and after reading each of them we are of the opinion no reversible error is presented by this record.

Mrs. Vaden testified appellant came up behind her, grabbed her hands, pinioned them behind her, threw her on the bed, and outraged her; and the judgment is affirmed.

DAVIDSON, J., dissents.

On motion for Rehearing.

HARPER, j.

Appellant has filed a lengthy motion for rehearing and an able argument thereon. In the first ground it is insisted that we erred in holding that the court committed no error in sustaining the objection to the following question to the witness Matthews, “Well, don’t you think that, if you were entitled to a child’s part of that $750, you would be entitled to a child’s part of the $50,000, too?” claiming that it is always permissible to introduce testimony to impeach .the credit of a-witness. This is no doubt true, but in this case this witness had already testified about being given one-fourth of. the $750 paid by Burge to Mr. Vaden to keep his wife away from court; and in answer to the question, “Well, do you know whether you are going to get a child’s part of that $50,000 that she sued for?” he had answered, “No, I do not know. I do not know that they are going to get it, and do not know anything about it.” Appellant does not state that he expected to prove that any agreement had been entered into whereby Matthews was to be given any part of the money, if any was recovered, but only that' Matthews would testify that, if he was entitled to a child’s part of the $750, he also thought he ought to be entitled to a child’s part of any amount that might be recovered in the suit. It having been shown that there was no agreement to pay him anything, and no legal obligation sought to be shown, but only that as Vaden had voluntarily given him part of the money paid to him to keep Mrs. Vaden from court, and get her to request the county attorney to dismiss the case against appellant, he thought if he was entitled to that amount he thought he ought to be entitled to more, if money was recovered in the suit, would have no bearing on this case, nor on the weight of his testimony. Had appellant stated in the bill he expected to prove, directly or indirectly, circumstantially or otherwise, that there was an agreement or understanding of any character that Matthews was to receive any portion of the money, if any was recovered, there would be merit in his bill; but the question propounded, and to which objection was sustained, nor the answer stated he expected to be made to the question, would have no such bearing. The wide range the court had already allowed in the cross-examination of this witness was amply sufficient to show any interest or bias he might feel or have in the case.

The authorities cited by appellant on this question do not sustain his contention, but all of them only go to show that the motive of a witness, his interest or bias, may always be shown, and this is unquestionably the law; but the question here propounded would throw no light on his motive, nor his interest, nor that he was biased in favor of the prosecuting witness.

Appellant for the first time in his motion for rehearing in this court claims that the court erred in not instructing the jury that Mrs. Vaden and J. M. Matthews were accomplices, asserting that as it is shown that Burge paid $750 to Vaden to get Mrs. Vaden to write a letter asking that the case be dismissed, and Vaden had given Matthews one-fourth of that amount, this made them accomplices, and the court should have so instructed the jury. No such contention was made in the court below at the time of the trial, nor in the motion for a new trial; and, if the court should so have instructed the jury, it would be too late to raise such question while the case is pending in this court on motion for rehearing. Chapter 138, Acts 33d Legislature, p. 278. However, this testimony would not raise such an issue.

Mr. Branch, in his work on Criminal Law, correctly states the law to be: “Witness is not an accessory or accomplice, and no charge on that subject is required from the fact there is evidence that the witness offered or accepted money to leave the state, or desist from prosecution; the fact that one compounds a felony does not of itself make such party an accessory to the felony compounded” — citing Chenault v. State, 46 Tex. Cr. R. 355, 81 S. W. 971; Robertson v. State, 46 Tes. Cr. R. 442, 80 S. W. 1000; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Smith v. State, 51 Tex. Cr. R. 141, 100 S. W. 924; Davis v. State, 52 Tex. Cr. R. 335, 107 S. W. 855. The only case sustaining appellant’s contention is that of Gatlin v. State, 40 Tex. Cr. R. 116, 49 S. W. 87, but that case was shortly thereafter overruled in the Chenault Case, supra, and the Chenault Case has been followed since that time.

The second ground of the motion is that we erred in holding that the witness could testify whether or not Mrs. Vaden was in a nervous, distressed condition when they saw her. We discussed this so fully in the original opinion we do not deem it necessary to do so again, and would not do so except that appellant notes one question and answer not taken cognizance of by us. After Mrs. Vaden had testified to her condition, after she claimed she had been assaulted, she was asked how long this condition lasted, and she said for about a week. This and other questions in the case are discussed in the case of Jacobs v. State (Tex. Cr. App.) 146 S. W. 558, and it was there held that it was permissible to testify that, from the injuries received, the lady who had been raped was confined to her bed for two or three weeks.

All the other questions in the motion for rehearing are fully discussed in the original opinion; and the motion for rehearing is overruled.

DAVIDSON, J.

Without discussing the legal questions urged for reversal, I am persuaded there is wanting that degree of force necessary to constitute rape by force. It may be difficult sometimes to draw the line between force and consent, but it is too thin here for conviction.  