
    WRAGG v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.
    Rehearing Denied March 27, 1912.)
    1. Criminal Law (§ 595) — Trial—Continuance.
    In a prosecution for rape, a continuance should not be granted for the absence of a witness who would testify to acts of sexual intercourse with the prosecuting witness.
    ■ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    2. Jury (§ 131) — Examination —Showing Bias.
    On a trial for rape, where a juror has testified that he served as juror in a criminal assault case, it is not error to exclude a question as to the verdict in that case; it having no tendency to prove bias.
    [Ed. Note. — For other cases, see Jury, Ceht. Dig. §§ 561-582; Dec. Dig. § 131.]
    3. Rape (§ 59) —Instructions — Punishment.
    It is not error to charge that the jury may assess the punishment for rape at death or imprisonment for not less than five years, although the jurors were not asked on their examination whether they had conscientious scruples against punishment by death.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.']
    4. Criminal Law (§ 1110) — Record—Conclusiveness.
    Modifications in a bill of exceptions accepted and filed by the appellant are binding on him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dee. Dig. § 1110.]
    5. Witnesses (§ 246) — Examination by CpURT.
    On a trial for rape, where the prosecuting witness was a young, inexperienced girl, it was not reversible error for the trial judge to examine her for the purpose of making clear certain features of her testimony, where his questions and conduct did not indicate to the jury his opinion of the merits of the case.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246.]
    6. Rape (§ 40) — Evidence—Admissibility.
    On a trial for rape, the prosecuting witness testified that she met C. by appointment and had sexual intercourse with him, and that C. then .helped to hold her while accused committed the act complained of. It was the theory of the state that she was seduced by C. under a promise of marriage, and that, áfter she had become pregnant, C. connived with accused to compel her to submit to intercourse with accused. She testified over objection that she was engaged to marry C. Held no error, although it tended to show the commission of another crime by C.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59, 64; Dec. Dig. § 40.]
    7. Rape (§ 38) — Evidence—Admissibility.
    Where the testimony of the prosecuting witness tended to show that a person accused of rape and C. were acting together to compel her to have sexual intercourse with accused, it was not error to permit her to testify to the acts and conduct of C. as well as the acts and conduct of accused.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59, 64; Dec. Dig. § 38.]
    8. Criminal Law (§ 728) — Misconduct op Counsel — Waiver.
    Improper remarks of the state’s counsel was not reversible error where no instruction to disregard such remarks was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    9. Criminal Law (§ 858) — Deliberations op Jury — Taking Documentary Evidence.
    A refusal to permit the jury to take papers received in evidence is not error, in the absence of a request by fjie jury that they be permitted to take them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2056-2059, 2062; Dec. Dig. § 858.]
    10. Criminal Law (§§ 763, 764) — 1Triad— Instructions — Weight op Evidence.
    On a trial for rape, a refusal to charge that the jury may consider certain facts in determining whether the prosecuting witness consented to the intercourse is not error, since this would be a charge on the weight of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    11. Criminal Law (§ 1159) — Appeal — Weight op Evidence.
    Where the evidence for the state, if believed by the jury, is sufficient, a conviction will not be disturbed, unless no unbiased jury could have arrived at such a verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.
    Sam Wragg was convicted of rape, and he appeals.
    Affirmed.
    
      W. P. Sebastian and A. A. Clarke, 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
    
   HARPER, J.

Appellant was convicted of the offense of rape, and his punishment assessed at five years confinement in the state penitentiary, from which judgment he prosecutes this appeal. .

1. Appellant filed a motion for a continuance on account of the absence of a witness by whom he states he expects to prove that he, the said witness, had had 'sexual intercourse on several occasions with the prosecuting witness with her consent. This would be no defense; for, if it would be true that the witness would so testify, it would not authorize appellant to commit the offense of rape on her, if he did do so. The testimony would only be admissible to affect the credibility of the prosecuting witness, and to impeach her, and a continuance will not be granted on account of the absence of a witness whose testimony would only go to the credibility of a state witness. Patton v. State, 58 Tex. Cr. R. 231, 125 S. W. 24; Gee v. State, 57 Tex. Cr. R. 151, 122 S. W. 23; and authorities cited in these two cases.

2. Appellant complains that, after a juror had testified that he had served as juror in a criminal assault case, he was not permitted to ask the juror what verdict was rendered in that case. Proper questions to test the bias in favor of or prejudice against a defendant, and in some instances as to prejudice in certain character of offenses, should be permitted, but the question to be proper should be directed to that issue. Inasmuch as the verdict rendered in a particular case, in another county, having no connection with this case, would have no such tendency, the court did not err in refusing to permit the question to be propounded. Cavitt v. State, 15 Tex. App. 199.

3. Inasmuch as the jury were not questioned on their voir dire whether or not they had conscientious scruples in regard to the punishment of death for crime, appellant complains that the court in his charge erred in instructing the jury that, if they found the defendant guilty, they would assess his punishment at death, or confinement in the penitentiary for life, or any length of time not less than five years. This is the punishment provided by article 639 of the Penal Code, and the court could not otherwise instruct the jury. There is no bill of exception in the record showing that appellant objected at the time of the examination of the jurors to the. failure to ask this question, if it was not asked, consequently this question is not presented for review; and it is not error for the court to correctly state the punishment fixed for any offense.

4. In a bill of exceptions appellant complains that the court would not permit his counsel to argue his motion for a new trial, nor present authorities. The court in his approval of the bill states that, after counsel for appellant had used some 30 or 40 minutes in presenting the motion, the court stated to .him he had read the motion, and did not think it presented error, when counsel for appellant stated he desired to reserve a bill.of exception to the action of the court in refusing to hear him, when the court states he told counsel he would give him “three hours or as much time as he might desire.” This was declined by counsel. Counsel is bound by the recitals of this bill as he accepted and filed it. Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561.

5. Appellant complains of the action of the court in asking the prosecuting witness certain questions, some of which were: “Miss Bell, whatever the defendant did, if he did anything, did he do it with or without your consent? A. Yes, sir; he done it without my consent. Q. Without your consent? A. Yes,, sir. Q. At the time he did what he did, if he did anything, and when. Roy Curry stated to you,” unless you permitted the defendant Wragg to have intercourse with you, that he, Curry, would not marry you, did you or did you not then agree that. Sam Wragg might have intercourse with you? A. No, sir. Q. You did not? A. No, sir.” The appellant objected to the court “examining the witness and making out the salient features of the charge, when the county attorney had failed to do so'.” The court in approving the bill states: “The prosecutrix was 16 years old, and did not appear to have more experience concerning affairs of life, or familiarity with expressions used, than is ordinary with a girl of her age; in fact, she still wore short dresses, and looked even younger than her age. The state had wholly failed to bring out the evidence mentioned, and the court deemed it necessary in the interest of justice, not only to the state, but to the defendant as well, to ask such questions, none of which were leading. If, when told by Curry that he would not marry her unless she submitted to the defendant, she had then freely submitted, the defendant then could not be guilty of rape, and likewise, if he had failed to penetrate her, he would not have been guilty of rape; hence the questions were asked as much in his behalf as in behalf of the state.” This question is discussed at length in the ease of Harrell v. State, 39 Tex. Cr. R. 204, 45 S. W. 581, and it is there held that the trial judge should not attempt to conduct the examination of witnesses, but, if he. did do so, if the questions propounded and the conduct of the judge were not such as to indicate to the jury his opinion of the merits of the case, no such error would be presented as would or should cause a reversal of a case.

6. The prosecuting witness had testified, without objection, that she had left home and gone to a place to meet Roy' Curry, in accordance with an appointment made with him, and, after she had had sexual intercourse with Curry, that appellant had come from behind a tree and grabbed her and threw her down on the ground, and, when she had objected to appellant having intercourse with her, that Curry had caught her and held her, and told her that if she did not submit to appellant (who was his cousin) he would not marry hermas he had promised to do, when defendant objected to the state proving the relation existing between prosecuting witness and Roy Curry. The witness testified over objection of defendant that Curry and she were engaged to be married; the grounds of objection being the proof would show an independent crime committed by a third person with which defendant had nothing to do. The court in approving the bill states: “It was the theory of the state that the prosecutrix had been seduced by one Roy Curry, who continued to have sexual intercourse under promise of. marriage with her until she became pregnant, and, after getting her in that condition, he then connived in forcing her to submit to the defendant, and that at the time the said Roy Curry male arrangements with prosecutrix to meet him on the particular Wednesday night in question for the purpose of having sexual intercourse with him, that he then arranged with the defendant to be present in hiding, and then, after having intercourse with her himself, the said Roy Curry then assisted the defendant in holding and forcing her to submit to said defendant. Under this theory .of the case, when the state proved by the prosecutrix that she went out to the trees on that particular Wednesday night to meet Roy Curry by appointment to have sexual intercourse with him, the court believed that the state was permitted to show the relationship then existing between her and Roy Curry, just as if she had been the wife of Roy Curry, and had gone for that purpose, and had then been raped by another, the fact that she was then married would have been admissible, in explanation of her acts with the said Roy Curry.” As thus explained by the court, and the statement of facts supporting him in such statement, there was no error in permitting the witness to so testify.

7. In another bill appellant complains that on redirect examination' the prosecuting attorney was permitted to ask the witness: “Now why did you not tell this before you came back from Abilene?” To which question she answered: “Roy told me not to tell it.” Which question and answer appellant moved to exclude because it was a conversation with Roy Curry, not in the presence of defendant, and simply hearsay. In the bill it is not shown in what connection this testimony was elicited, and the bill is incomplete in that respect, but in approving the bill the court'states: “The evidence showed that prosecutrix' was engaged to marry Roy Curry, and had been having intercourse with him for some time,, and by appointment, on this particular Wednesday night, she having then become-pregnant, she met said Roy Curry at.some-trees several hundred yards from.her house,, for the purpose of having sexual intercourse-with him, which purpose was carried out, immediately after which defendant came-up from behind her, put one of his hands, over her mouth, telling her not to hollow, and catching her around the neck with the-other hand threw her down, and then the-said Roy Curry held her hands while the-defendant had connection with her, and the said Roy Curry told her not to tell any one, and then both Roy Curry and defendant went off together, and in a short, time both defendant and said Curry told, her that, if she didn’t leave the country,, they would kill her.” As thus qualified the-bills present no error.

8. According to the testimony of the-prosecuting witness: She and Roy Curry were engaged to be married, and she had been having carnal intercourse with him for-some period of time. That on the night in question she met. Roy Curry at an appointed place and had intercourse with him, and appellant then appeared on the scene, and by force of himself and Curry she was compelled, to have intercourse with appellant. That Curry promised to marry her Sunday week following this occurrence, and by appointment she again met Curry on Saturday night. Curry had told her that he would not let appellant come, but again he appeared on the-scene. Appellant and Curry are cousins. After this conduct, she says Curry advised her to go to a house of prostitution at Galveston, and appellant advised her to go to such a house at Waco. That they told her if she-did not leave and gave birth to a baby she-would be sent to the penitentiary, and had made threats to take her life. On the night, she left, the' man who went after her was riding appellant’s horse, and appellant was at the point where she got in a buggy to-leave. The acts and conduct of the parties are so entwined, and she testifies to a course-of conduct that would have them acting together, under these circumstances there was. no error in admitting in evidence the acts and conduct of Curry as well as the acts and. conduct of appellant.

9. There is some complaint of the argument of state’s counsel. As qualified by the-court, this presents no error. In addition thereto no charge was asked instructing the-jury not to consider such remarks. In the-absence of a requested charge, this would not be ground for reversal of the case. Young v. State, 19 Tex. App. 536.

10. There was no error in the court not requiring the jury to take with them certain papers introduced in evidence. Had the jury called for these. papers, it would have been proper to permit them to take them, but, in the absence of a request from the jury, it is not obligatory on the court to require that they take the evidence with them during their deliberations. Article 731, Code of Criminal Procedure, and Schultz v. State, 15 Tex. App. 258, 49 Am. Rep. 194.

11. In the motion for a new trial there is no complaint of the charge of the court, but appellant does complain of the action of the court in refusing and failing to give his special charges Nos. 3 and 6. Both of said charges relate to matters of evidence, and would instruct the jury to take into consideration certain evidence in determining whether or not the prosecuting witness agreed to the acts of intercourse. Both of these circumstances could and doubtless were used in argument by counsel as tending to prove there was no rape, but an act of intercourse by mutual consent. However, it would hardly be proper for the court to select these circumstances and charge thereon. This would be upon the weight to be given the testimony, and the court is not authorized to select isolated facts of the testimony and instruct the jury what weight should be given to it. Gonzales v. State, 32 Tex. Cr. R. 620, 25 S. W. 781; White v. State, 17 Tex. App. 188; Johnson v. State, 1 Tex. App. 609; Walker v. State, 13 Tex. App. 618, 44 Am. Rep. 716, note; McCall v. State, 14 Tex. App. 353.

12. In this case it is earnestly insisted that the evidence does not support the verdict, and show a ease of rape. If we take the evidence adduced on behalf of defendant, this is true, but the evidence of the prosecuting witness seems to have been believed to be true by the jury trying the case. Under our law a man charged with felony must be tried by a jury, and the individual opinion of the judge as to the weight to be given the testimony is not the criterion by which the guilt or innocence of an accused is to be judged. If there is no evidence, we will not permit the verdict to stand. But if the evidence of the state makes a ease, and the jury accepts that evidence as true, we will not disturb the verdict except in those rare instances where in our opinion no unbiased jury could have reached the conclusion arrived at by the jury. In this case the evidence is conflicting. The prosecuting witness has not conducted herself in such a manner, under all the circumstances, as for it to be construed that she perhaps has been grievously injured by this áppellant. But her conduct did not authorize him to secure sexual favors by force, and notwithstanding the conduct of the prosecuting witness, the jury has accepted her version of this matter as true. The trial judge who saw and heard the witnesses testify evidently does not think an injustice has been done, and at this distance we cannot say she is not worthy of credit. She is a young girl but 16 years of age, and has gone or been led astray, ■ as shown by her testimony, but her sexual favors by consent, if she.is to be believed, were extended to another, and not to appellant.

Under these circumstances, the judgment is affirmed.  