
    HUTCHERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 29, 1911.)
    1. Rai?e (§ 64) — Punishment — Excessiveness.
    Twenty years’ imprisonment is not excessive punishment for forcibly raping a child.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 105; Dec. Dig. § 64.]
    2. Criminal Law (§ 134) — Change of Venue —Popular Prejudice.
    Evidence held insufficient to show popular prejudice entitling one accused of rape to a change 'of venue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251, 252; Dec. Dig. § 134.]
    3. Criminal Law (§ 722) — Argument—Propriety.
    It was not error, in a rape trial, for the prosecuting attorney to say in his argument, “It seems that the defendant, in order to bring about the ruin and destruction of this child, called in the assistance of his paramour, after he had failed in his purpose to do the same thing by himself on a former occasion.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    4. Rape (§ 35) — Rape op Child — Evidence.
    In a trial for raping a child under 14 years of age, the state could show all the facts attending the offense, including force used, though the indictment did not charge force.
    [Ed. Note'. — For other cases, see Rape, Cent. Dig. §§ 42-45; Dee. Dig. § 35.]
    5. Rape (§ 43) — Evidence—Physical Condition.
    In a rape trial, a physician who examined prosecutrix five days after the offense could testify to the conditions disclosed.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    6. Criminal Law (§ 591) — Continuance-Popular Prejudice Against Accused — Evidence — Suppiciency.
    Evidence held insufficient to show popular prejudice against one accused of rape entitling him to a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1318; Dec. Dig. § 591.]
    7. Criminal Law (§ 603) — Continuance-Application — Suppiciency.
    Application for a continuance on account of an absent witness is insufficient when it does not show to what he would testify.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 603.]
    S. Criminal Law (§ 603) — Continuance-Application — Suppiciency.
    Application for a continuance because of threats of mob violence if application for postponement should be made is insufficient, when it does not show who warned nor the extent of the warning.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 603.]
    9. Criminal Law (§ 796) — Instructions— Object op Punishment.
    In a rape trial, it was not error to refuse to instruct that the object of punishment is to suppress crime and reform the offender, and that punishment with another object is unauthorized.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1928-1934; Dee. Dig. § 796.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Luther Hutcherson was convicted of rape, and he appeals.
    Affirmed.
    Bennett & Jones and Sherrill, Mulkey & Hamilton, for appellant. 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
    
   PRENDERGAST, J.

The appellant was indicted and convicted for rape on a girl under the age of 15 years.

The evidence, without a shadow of doubt, shows that on the evening of August 25, 1910, the appellant, a man of mature years, in connection with a woman, enticed the little girl, not then 14 years of age, to go with him and this woman in a buggy, she (the little girl) protesting that she did not want to go with them and would not go with them, until by persuasion by both she got into the buggy with them, they assuring her that they would only drive a very short (iistance to a house that was then in sight and would return; that after they got her in the buggy they both held her, she trying to get out and protesting that she did not want to go but wanted to return ; that they held her in this way and drove some two miles or more from the city of Greenville to a secluded place. The appellant and this woman, when they reached that place, after hitching the horse, forcibly took the little girl' from the buggy and dragged her some distance therefrom into the woods; the appellant, during this time, by threats and persuasion trying to induce the child to let him have sexual intercouse with her. She protested, holloed, and struggled. They then threw her upon the ground. The man got upon her, and she, by fighting and placing her hands, prevented at that time the intercourse. Thereupon he and the woman removed and forcibly held her hands while he accomplished his purpose. The child then got back in the buggy, but they did not return with her. After waiting some time, they then took the child, and in the same manner he ravished her a second time. Afterwards they returned with her to the city of Greenville, but did not take her to her aunt’s, where she was staying, but had her to get put some distance before they reached there, and she and this unnatural woman then returned to her aunt’s house.

The child’s evidence was amply corroborated by other witnesses showing that the appellant and this woman were seen to have this child in the buggy with them that evening and drove out the direction where the child testified the outrage occurred and was seen returning late in the evening from that direction with her. The appellant then told one of the witnesses that he had been out with the girl and this unnatural woman, and, in substance, that he had had intercourse with both of them that evening. ,

The appellant’s attorneys, in their brief and in the record, in effect admit the guilt of the appellant. They contend, however, that the penalty assessed of 20 years’ confinement in the penitentiary was excessive, and that the case should be reversed in order that he might have a new trial, not to be acquitted, but to see if another jury will not fix a lesser penalty. The contention made by appellant, through his attorneys, is that there was a mob spirit prevailing in the city of Greenville and in Hunt county, which had its effect upon the jury and induced and caused the jury to fix the heavy penalty.

We have examined and gone over this record time and again with a good deal of care and study and have failed to find any evidence of the effect of such a spirit and are entirely satisfied with the verdict. We doubt whether there can be any other case found reported in the books which will show a greater outrage and an offense calling for severer punishment than is shown by this record. In fact, it is remarkable in some respects, in that a person who is called a woman could be found that would lend herself to be present and forcibly aid the appellant in ravishing a child under 14 years of age in satisfying his unnatural lust in the way this record shows was done. We think that the appellant has been very mildly dealt with by the verdict of the jury in this case.

1. Among other errors assigned is that the court erred in not changing the venue of this case from Hunt county, where the offense was committed. The record shows an application addressed to the judge. It is not in the terms of the statute, signed by the appellant and two witnesses, but seems to have been addressed to the discretion of the court requesting the court of his own motion to change the venue. The grounds of this motion are, in substance, that there is considerable excitement in Hunt county after the discovery of the offense, and that there is an indication of mob law and of violence to the appellant. This motion or application for change of venue was contested by the affidavits of the county attorney, the district attorney, and the sheriff of the county, which, in effect, show that there is no such feeling in the county as indicates mob violence nor that will prevent appellant from having a fair and impartial trial. It is shown that, when the appellant and this woman were first arrested, there was some feeling and excitement, and the sheriff thereupon removed the appellant from the jail in Hunt county, to the jail in Dallas county, but that this excitement subsided, and in a few days he returned with the appellant and replaced him in the jail in Hunt county, where he has continuously been and was at the time of the trial. The offense was committed on August 25, 1910; he was indicted by the grand jury of Hunt county on October 5, 1910; and the trial began on October 10, 1910. There was no error in the court’s refusal to change the venue.

2. There are some bills of exception claimed to have been taken to the argument of the county and district attorneys before the jury. These bills were refused by the district judge, and there were then both supporting and controverting affidavits filed attempting to support and to dispute the bills. We deem it unnecessary to take up each of these several bills. We will take the first as a sample and show what the record shows thereabouts. This first bill claims that, in the opening address to the jury by Hon. R. F. Spearman, County Attorney, he used the following language: “It seems that the defendant, in order to bring about the ruin and destruction of this child, called in the assistance of his paramour, after he had failed in his purpose to do the same thing by himself on a former occasion at the waterworks.” This bill is supported by the affidavits of several persons with more or less positiveness; the attorneys for the appellant apparently positively; others that the language used was substantially as they remember it as quoted in the bill.

The county attorney made an affidavit in which he says that he did not use the language quoted in the bill, but used substantially the following language: “The defendant, being unable to accomplish the ruin and destruction of this child alone and unaided, called to his assistance his paramour, an unnatural woman, whose conduct can only be explained by attributing to her the same enormity of moral degredation that move the defendant to the accomplishment of his cruel designs and unnatural purposes.” The affidavits of several persons support the affidavit of Mr. Spearman, and deny that shown by the bill.

The judge refused this bill because he did not hear the language. In explanation he states that, at one time during the argument of the county attorney, Mr. Hamilton, of defendant’s counsel, came to his desk and stated that he objected to the remark of the county attorney; that he did not remember the words or language he objected to, nor the reasons for the objection; that several times after thi?, during the argument of the county attorney, defendant’s counsel said to him privately, “We object to that,” not stating to what they objected, nor the grounds of their objections. At no time did they request the court, either verbally or in writing, to charge the jury not to consider any of the county attorney’s remarks. That Mr. Spearman, the county attorney, denies emphatically using the language. We believe that the language claimed to have been used by the county attorney was legitimate and proper under the circumstances and facts of this ease; that it was clearly justified by the proof; and that the way the matter was presented to the judge and the manner of the exceptions would not justify this court in reversing the case. We hold that the record does not show any reversible error by the court on this or any other of the claimed bills of exception as to the language of either the county attorney in opening the ease, or the district attorney in closing it. In this connection we further state that the affidavit of the district attorney, especially, in the record, shows that the attorneys for the state in argument restrained themselves from making any inflammatory remarks and arguments not justified by the facts, with remarkable restraint.

3. Bill of exception No. 5 complains that while the child, who was ravished, Arminta Scott, was on the stand testifying as a witness for the state, and after she had testified that she was only 14 years of age, and that the defendant, Luther Hutcherson, had had sexual intercourse with her at the time charged in the indictment, she was asked by the district attorney to detail the circumstances of the occurrences, to which testimony the defendant objected on the ground that there was no force charged in the indictment, that it charged only statutory rape, and appellant objected to any other evidence showing force because the same was not charged in tbe indictment. The objections were overruled, and the witness was permitted to testify as shown -by the bill as follows : “And so they grabbed hold of me, one on each arm, and they drug me over there in the woods and took me over there in the woods, and I was crying and hollering.” All of the facts of what occurred and how they occurred from the time the child was first induced to get into the buggy until and including the ravishment itself certainly were admissible. It is necessary, in order to understand what was done and said, to prove it, even though the indictment might not have alleged that it was committed with force, threats, etc. There was no error in permitting this testimony.

4. Appellant’s sixth and last bill of exception is to the testimony of the doctor who made an examination of the child within five days after the offense was committed. The testimony of the doctor is given in the bill. It is unnecessary for us to recite the whole of it. The testimony, however, showed the facts of the doctor, who was a regular practicing physician, examining the physical parts of the child on the 5th day after the offense was committed, stating what he did, how he did it, and what he found. He shows that he found the hymen was in a circular form with a jagged, ragged opening; that there was a condition of sensitiveness about the mouth of the urethra and the hymen, and there was irritation about the parts with a little more coloring about the margin of the vagina; that the sensitiveness indicates there had been some irritation of some character before, not long enough to have subsided entirely; that if the hymen had been normal and not penetrated, he thought it would not have had that jagged opening; that the opening might have been penetrated by a male organ, but that in his opinion there would be some pain about it. This testimony of the doctor was objected to by the appellant because it was immaterial, and irrelevant, too far from the offense to be a part of it or the res gestm, and, the defendant not being present, it was hearsay and prejudicial. The court approved the bill with the following explanation: “The proof showed this offense to have been committed August 25, 1910, and this examination was made August 31, 1910. In this ruling I was guided by the rule laid down by the Court of Criminal Appeals in the case of Gonzales v. State, 32 Tex. Cr. R. 611 [25 S. W. 781]; also, Pless v. State, 23 Tex. App. 73 [3 S. W. 576].” Both of these eases and many others might be cited to show that this testimony was admissible. In the Gonzales Case, the examination of the doctor occurred two months after the offense was committed; in the Pless Case it occurred five weeks thereafter. The testimony of the physician in each of those cases was held admissible. Such testimony of the physician, unless too remote, is always admissible where pertinent, as in this character of case. There was no error of the court in not excluding this testimony.

5. Before the case was tried, the appellant made a motion to postpone or continue it on two grounds: The first, in substance, because the feeling and prejudice was so great against the defendant at that time that he could not get a fair and impartial trial as fully set up and shown by the motion for change of venue. Second, because Mrs. Ruth Campbell, who is charged with being a principal to the same offense herein charged, and who was present when the alleged offense was committed, has not yet been indicted by the grand jury, but is still in jail pending action of the grand jury held on this charge, and that her evidence is material for the defense, and that appellant believes there is not sufficient against her to secure her conviction, but he believes it is the purpose of the grand jury to indict her and the purpose of the district attorney to have her indicted, but that action on her case is withheld until the appellant can be tried in order to prevent her from being first tried and to deprive him of her testimony; that the grand jury now in session had had all the evidence concerning her connection with the offense, and she is neither indicted nor released, and he believes the only purpose in delaying action on her case is to deprive him of her testimony and to force him to be tried first. Third, that defendant’s counsel have been warned not to make any motion for postponement or continuance for fear of mob violence. This motion is presented- to the court privately before the opening of the court on this October 10, 1910. This motion was sworn to by the appellant. What we have stated about the motion for change of venue also applies here. It is unnecessary to repeat it. The second ground of the motion does not show what the woman, Mrs. Campbell, would testify and is insufficient for that reason if for no other. The third ground does not show by whom the appellant’s counsel were warned, nor the extent thereof, nor that it prevented appellant’s attorneys from doing everything necessary and proper for his defense.

We reiterate that we have examined this record repeatedly and with care, and we are impressed that the facts really repelí instead of show that there was any such mob spirit, excitement, or anything else occurring at • the time to show that the appellant -was in any way deprived of a fair and impartial trial. The extent of the penalty fixed, in our opinion, also largely bears this out. There was no error in overruling the appellant’s motion for a continuance or postponement of the case.

6. Appellant complains of the refusal of the court to give the following requested charge: “That the object of punishment, under the law is to suppress crime and reform the offender, and any punishment having any other object is not authorized by law.” This is the whole of the requested charge. But it was requested of the court after the main charge was read to the jury and was refused. This is a correct enunciation of law. It was neither appropriate nor proper to give it to the jury in this case. All this could have been and doubtless was argued to the jury. The court did not err in refusing to give it.

We are entirely satisfied and fully convinced of the guilt of the appellant, and we think that, the record showing such enormity of offense, the penalty assessed is very mild and really less, instead of greater, than perhaps ought to have been inflicted.

There being no reversible error, the judgment is in all things affirmed.  