
    HENNINGTON v. STATE.
    (No. 8753.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1924.
    Rehearing Denied June 24, 1925.)
    1. Criminal law <®c=3i 120(1) — Objection to refusal of question to witness not considered, in absence of showing of pertinence of question and prejudice of exclusion.
    Exception to refusal to reeeivé statement of witness, as to general reputation of a person for truth and veracity in community in which he resided, helé not to show error, in absence of any showing that the person was a witness, or that his testimony had been attacked, or what his answer would have been.
    2. Witnesses <&wkey;4IO — Confliction of testimony held not to render general reputation of witness for truth admissible.
    That there was some contradiction between a witness and others would not render evidence of his reputation for truth and veracity admissible.
    3. Witneses <&wkey;340(3) — That general reputation of’ prosecutrix for chastity was bad, not admissible on issue of her veracity.
    In prosecution for rape of 13 year old girl, evidence that general reputation of prosecutrix for chastity was bad helé not admissible on issue of her veracity as witness.
    4. Rape <&wkey;40( I)— Previous unchaste character of prosecutrix not provable by reputation.
    In prosecution for rape, previous unchaste character of prosecutrix is not provable by reputation, irrespective of whether her consent is involved, in view of Pen. Oode 1911, art. 1063.
    5. Criminal law &wkey;>l 120(8) — Objection to evidence not considered, where bill does not show surrounding facts which might have made it admissible.
    In prosecution for rape, objection to evidence that father of prosecutrix, after learning of assault, armed himself and made search for accused and his companion, would not be considered, where bill did not show surrounding facts enabling court to determine that testimony was not made admissible by some phase of evidence or conduct of case.
    6. Criminal law &wkey;>l 120(8) — Objections to evidence not considered where bill does hot show surrounding facts which might have made it admissible.
    In prosecution for rape, exclusion of question asked prosecutrix, whether at time of trial she was in the family way, will not be considered, where bill does not show surrounding facts enabling court to determine that testimony was not madé admissible by some phase of evidence or conduct of case, and where answer expected was not disclosed.
    7. Witnesses <&wkey;40 (2) — Admission of testimony of girl of 13, who knew it was wrong to lie, not abuse of discretion.
    Puling that girl of 13, who knew it was both morally and legally wrong to lie, and that such ■conduct was likely- to result in punishment, and who was able to give connected relation of , facts within her knowledge, was not incompetent to testify, within meaning of Oode Cr. Proc: 1911, art. 788, held not abuse of trial court’s discretion, notwithstanding she was ignorant and had limited understanding.
    8. Witnesses <3=378 — Burden of showing incompetency of prima facie competent witness for state was on accused.
    Where prosecutrix was 13, and by her general demeanor prima facie competent as witness, burden of showing incompetency was on accused.
    9. Witnesses <&wkey;79(l) — Competency of witnesses is within court’s discretion.
    Primarily competency of witnesses is for determination by court, within its discretion.
    10. Criminal law <&wkey;959 — Refusal to postpone hearing on motion for new trial, requested when hearing was virtually over, held not error.
    Refusal to postpone hearing on motion for new trial, requested by. accused when hearing was virtually over, in order to produce witness who had told counsel that she had not testified correctly at trial because afraid of her husband, and who had agreed to testify at hearing of motion, but failed to do so, held'ftot error; there being lack of diligence in failing to take earlier action to secure her attendance.
    11. Witnesses &wkey;>374(2) —rEvidence showing motive of witness in securing statements from prosecutrix absolving accused admissible.
    Where notary public and constable had secured statements from prosecutrix, absolving accused, and testified that he had received $5 for doing so, and had not heard there was a , reward of $100 for obtaining such, statement, testimony that he had admitted before securing statement that he had heard such reward had been offered helé.not impeachment on immaterial matter; being based on motive and animus of conduct and testimony of witness, and was not such as could have been appropriated for any other than impeachment purposes.'
    12. Criminal law <&wkey;>l I66i/2(6) — Overruling challenges of veniremen for cause not error, in absence of prejudice.
    Overruling challenges of veniremen for cause held not prejudicial, in’ absence of showing that any veniremen so challenged sat upon jury, or that accused was prejudiced by failure of court to disqualify them.
    13. Criminal law <&wkey;í!66¡/2(6) — Refusal to retire venire from courtroom while each venireman was examined on voir dire not error, in absence of showing of prejudice.
    Although ordinarily request that court retire special venire from courtroom to permit each venireman to be examined on his voir dire should be granted, refusal to grant exclusion requested on grounds that counsel desired to interrogate each separately in reference to relations with certain secret organizations held not to show prejudice or injury.
    Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    
      Bubadoo Hennington was convicted, of rape, and he appeals.
    Affirmed.
    See, also, 264 S. W. 104.
    R. A. Brooks, of Bastrop, and J. P. Hair, of San Antonio, for appellant! >
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.'

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 99 years.

The indictment contained two counts: One charging force, the other nonage of the female. The latter count alone was submitted to the jury.

Nora Erwin, the prosecutrix, a girl about 13 years of age, gave evidence showing the commission of the offense. Her sister gave like testimony. Both of these witnesses claimed that the rape was accomplished by assault. The occurrence was reported at the home of the prosecutrix. There was evidence that appellant fled the country. This he explained in his testimony by the statement that his father advised him to leave in order to avoid mob violence.

Both of the witnesses above mentioned made to a notary, under oath, -a statement retracting their previous inculpatory statements against the appellant which they had made to the sheriff. On the trial, however, they gave evidence of guilt in accord with their first declarations.

Appellant, by his testimony and that of his witnesses, presented the theory of alibi. He also denied in toto any connection with the transaction.

The bill complaining of the refusal of the court to receive from the witness Fleming the statement that he was acquainted with the general- reputation of W. J. Scar-brough for! truth and veracity in the community in which he resided does not reveal error. We are unable to learn from the bill that Scarbrough was a witness or that his testimony had been attacked; nor does the bill show what Fleming’s reply would have been to the question propounded. In these particulars the bill is incomplete. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112. It may be inferred, from the reasons given by the appellant in the bill for complaining of the court’s action, that, as between Scarbrough and some other witnesses, there was some contradiction. Granting this, the reputation, of Scarbrough in the respect mentioned would not thereby become admissible. Britt v. State, 21 Tex. App. 221, 17 S. W. 255, and numerous other cases cited by Mr. Branch in his Ann. Téx. P. C. § 184, subd. 2.

The offer of the appellánt .of evidence to the effect that the general reputation of the prosecutrix for chastity in the community in which she lived was bad was properly rejected. It was not "relevant upon the issue of veracity upon which it was offered. McCray v. State, 38 Tex. Cr. R. 611, 44 S. W. 170, and other cases cited by Mr. Branch in his Ann. Tex. P. C. p. 116, § 184, subd. 9.

There was no question of consent of the prosecutrix involved. She was under 15 years of age. Had she been above that age, her previous unchaste character might have been an issue, but, if so, it would not have been provable by reputation. See Pen. Code, art. 1063; Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 991, and authorities collated on page 333 (230 S. W. 992). See, also, Underhill on Crim. Ev. (3d Ed.) § 621.

The bill complaining of the testimony to the effect that the father of the prosecu-trix, after learning of the assault, armed himself and made search for the appellant and his comxsanion does not show error. It embraces no surrounding facts enabling the court to determine that the testimony was not made admissible by some phafeb of the evidence or conduct of the case.

These remarks are likewise applicable to the bill revealing that the appellant. was not permtited to ask the prosecutrix whether, at the time of the trial, she was in a family way. The answer expected is not disclosed by the bill.

The court, upon the request of counsel, retired the jury and conducted an inquiry in, which he determined that-the prosecutrix had sufficient intelligence to give testimony as a witness. The witness in question was about 13 years of age. She had gone to school, but was not able to read and. write. She had no understanding of such words as “the pains and penalties of perjury” and “binding conscience by an oath.” The word “falsehood”' was not comprehensible to her, but she understood what it meant to tell the truth and to tell a lie. The statute (article 788, O. 0. P.) includes, among those who are incomp'etent to testify, insane persons, felons, and children who, after being examined by the court, appear not to possess sufficient intellect to relate' transactions ■with respect to which they are interrogated, or who do not understand the obligation of an oath. The age of the prosecutrix, so far as the record shows, and her "general demean- or, were such as prima facie made her a com-, petent witness, and the burden of showing incompetency was upon the appellant. Batterton v. State, 52 Tex. Cr. R. 381, 107 S. W, 826. Primarily the matter of competency is one to be determined .by the court. Ver-hon’s Tex. Crim. Stat. 1916, vol. 2, p. 700, note 13, and cases cited; Holst v. State, 23 Tex. App. 1, 3 S. W. 757, 59 Am. Rep. 770; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Valdez v. State, 71 Tex. Cr. R. 487, 160 S. W. 341. See, also, Wharton’s Crim. Ev., vol. 1, p. 719, § 357; Charles v. State, 81 Tex. Cr. R. 467, 196 S. W. 179; Carter v. State, 87 Tex. Cr. E. 299, 221 S. W. 603; Killing Case Law, vol. 28, p. 449, § 36, and page 451, § 38; State of Washington v. Pryor, 46 L. K. A. (N. S.) p. 1029, note; Mills v. Cook (Tex. Civ. App.) 57 S. W. 81. Doubtless, upon 'some states of fact or conflicting evidence, a jury question might arise as to the competency of a witness. See Branch’s Ann. Tex. P. C. § 854; Vernon’s Tex. Crim. Stat. 1916, vol. 2, p. 699.

On the testimony in the present case, as developed by the bill of exceptions, we fail to perceive any abuse of the discretion of 'the court in holding the witness competent, or in refusing to make the question of her competency the subject of an instrue&m in his charge. The witness was not ola and was ignorant, but possessed knowledge that it was both morally and legally wrong to lie; that such conduct was likely to result in punishment. She was able to give a connected relation of the facts within her knowledge. See Mason v. State, 2 Tex. App. 192; Hawkins v. State, 27 Tex. App. 273, 11 S. W. 409; Parker v. State, 33 Tex. Cr. R. 111, 21 S. W. 604, 25 S. W. 967; Partin v. State (Tex. Cr. App.) 30 S. W. 1067; Munger v. State, 57 Tex. Cr. E. 384, 122 S. W. 874; Zunago v. State, 63 Tex. Cr. R. 58, 138 S. W. 713, Ann. Cas. 1913D, 665; Finch v. State. 71 Tex. Cr. R. 325, 158 S. W. 510; Valdez v. State, 71 Tex. Cr. R. 487, 160 S. W. 341; Smith v. State, 73 Tex. Cr. R. 273, 164 S. W. 838; Cole v. State, 73 Tex. Cr. R. 457, 165 S. W. 929; Douglas v. State, 73 Tex. Cr. R. 385, 165 S. W. 933; Brown v. State, 76 Tex. Cr. R. 513, 176 S. W. 50.

The action of the court in refusing to postpone the hearing of the motion for new trial, as explained in the qualification of the bill, shows no error. According to the court’s statement, explaining the bill, the request was made when the hearing was virtually over, and the postponement was sought to obtain a witness to prove an alleged fact, the knowledge of which the appellant and his counsel had information in advance of the calling of the motion; and the failure to take earlier action to secure the attendance of the witness must be attributed to a lack of diligence. The witness sought was a woman who vhad testified upon the trial to the presence of blood upon the.person of the prosecutrix, which" was observed soon after the alleged assault. .On the day before the hearing of the motion, she, according to the motion, told the appellant’s counsel that the testimony given by her upon the trial was untrue; that in fact she had made no examination; that she gave her testimony in fear of her husband; that she wanted to tell the truth on the hearing of the motion; that if subpoenaed she would still be in fear of her husband, but if counsel sent an automobile for her she would volun-ta'rily come to court; that she had failed to comply with this agreement.

The witness Edgar Owens testified upon behalf of the appellant that, at the solicitation of one Clark, he had gone to the home of the prosecutrix to get a statement from her and her sister, for which service he had been paid $5. The witness detailed his visit, his conversation with the prosecutrix, her sister, and the mother of the two girls, his reduction of their statement to writing and taking their aflidavits thereto. Upon his testimony a statement contradictory of their previous statements to the sheriff and others and their testimony given upon the trial was introduced in evidence. On cross-examination, Owens said that he went several miles in company with Scarbrough to get the statement. Owens, in addition to being a notary public, was a constable. On cross-examination he said that he had not heard that there was a reward of $100 for any one who would get such a statement as he had obtained from the girls. He replied that he had not heard of such a statement; that, if he had, he would have been foolish to have accepted the $5. He said that he had no knowledge that the law only authorized him to collect 50 cents as a notary public. A predicate was laid to prove by Perkins and several other witnesses that Owens claimed to.have heard that there was a reward of $100 to get a statement; that in a conversation in the sheriff’s offic.e, in- the presence of witnesses, Owens admitted the knowledge of such a statement.

Complaint is made of the fact that, after laying this predicate, witnesses were introduced who testified that Owens did admit that before taking the statement he know that a reward of $100 had been offered for obtaining it, or at least that he had heard that such report had been made, and in the same connection he testified that at the time of laying the predicate Owens said that he had heard of the statement but had only .received $5. Objection-is urged that this im% peachment was upon an immaterial -matter. The motive and animus contr'olling or inspiring the conduct and testimony of the witness Owens were not immaterial. Summarizing the many authorities which are cited by Mr. Branch in his Ann. Tex. P. O. § 163, this statement is used :

“The motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters.”

In a numbfer of bills of exception complaint is made of the refusal of the court to sustain the appellant’s challenges for cause made against several of the veniremen. Inasmuch as it is not made to appear from the bills" that either of the veniremen embraced in the challenges sat upon the jury or that in any manner the appellant was prejudiced by the failure of the court to hold the veniremen disqualified, no error was committed. James v. State, 74 Tex. Cr. R. 139, 167 S. W. 727; Myers v. State, 77 Tex. Cr. R. 239, 177 S. W. 1167; Vernon’s Tex. Crim. Stat. 1916, vol. 2, p. 903, subd. 22.

Appellant requested the court to retire the special venire from the courtroom in order to permit each venireman to be examined on his voir dire in the absence of all the others. Unless there was some compelling reason for the refusal, the request should have been granted. Streight v. State, 62 Tex. Cr. R. 453, 138 S.W. 742; Crow v. State, 89 Tex. Cr. R. 159, 230 S. W. 148. To work a reversal, however, it would be necessary to make it appear that by the refusal the appellant’s rights were abridged, his defense prejudiced, or that in some manner injury resulted. As presented by the bill, all that appears is that appellant told the court that he desired to interrogate the veniremen with reference to their relations with certain secret organizations, and feared that such inquiry might inure to his prejudice if made in the presence of the veniremen to whom the questions were not directed. It is believed that this general statement would not warrant this court in concluding that prejudice or injury to his case resulted. Some more specific information as to what was the nature of the inquiry and what consequences, if any, followed directly the failure of the court to facilitate the asking should have been given. If there was probability of injury, it would seem that the matter might have been made more specific in the bill or that it might have been aided by the development of the facts upon the motion for new trial. As stated in the cases mentioned above, unless the circumstances rendered it impracticable, such a request ought not to be denied. It is not difficult to comprehend that the failure to pursue the practice suggested might, in a given case, bring unnecessary constraint upon the accused or his counsel in pursuing inquiries requisite to forming a satisfactory conclusion with reference to selecting the jury.

Against the charge of the court several criticisms are addressed which, in our judgment, are untenable. The charge of the court was specific and definite to the point that it was essential that the state prove penetration. The evidence upon the subject was undisputed. Appellafit presented no such defensive theory, but relied entirely upon the denial of his presence or participation in the offense. An adequate charge upon alibi was embraced in the main charge. The testimony introduced to impeach the witness Owens, to which we have adverted, was not such as could have been appropriated by the jury to any other than for impeaching- purposes. Under such circumstances this court has uniformly held that a limitation of the testimony in the charge is not required. See Brown v. State, 24 Tex. App. 170, 5 S. W. 685; Branch’s Ann. Tex. P. C. § 180, and cases collated.

Failing to ’find any error authorizing a reversal,, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have examined appellant’s motion'for rehearing. The questions raised were carefully considered upon original 'submission, and we feel sure were properly decided.

The motion for rehearing is overruled. 
      (SssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     