
    SHARP v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.
    On Motion for Rehearing, Nov. 5, 1913.)
    1. Criminal Law (§ 1092) — Appeal — Review — Change of Venue.
    Under Code Cr. Proc. 1911, art. 634, providing that an order granting or refusing a change of venue shall not be revised on appeal, unless the facts upon which it was based are presented in a bill of exceptions, approved and filed at the term at which the order was made, the Court of Criminal Appeals cannot review an order overruling a motion for a change of venue where the only bill of exceptions on the ■question was not filed until over two months after court had adjourned for the term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Rape (§ 39) — Peosecution—Admission of Evidence.
    In a prosecution for rape while taking prosecutrix automobile riding, evidence that shortly before the alleged rape accused left the automobile and went into a store and stated there to witness that he had plenty of c-k in the wagon and had plenty of money to pay his fine, and if he could not make her spark “you come and turn her over,” was admissible on the question of intent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 51; Dec. Dig. § 39.]
    3. Rape (§ 46) — Admission of Evidence.
    Evidence was admissible, in a prosecution for the rape of prosecutrix while accused had her out for an automobile ride, that on the day after the alleged attempt witness found a hat pin in the automobile driven by accused, and that it was bent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    4. Rape (§ 46) — Admission of Evidence.
    Evidence that witness examined a spot of ground, on the side of the road on which prose-cutrix and accused were automobile riding, between a certain town where they were and prosecutrix’s boarding place, and that there was a circle about four steps in length about four steps from the road which looked like some one had gouged their toes or heels in the ground, was admissible in a rape ease; other evidence showing that accused’s tie pin and the heel of prosecutrix’s shoe were also found there.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    5. Rape (§ 46) — Evidence—Remoteness.
    In a prosecution for rape, charged to have been committed on Friday evening, evidence of the condition on Sunday morning of the spot where it was supposed to have been committed and where property of accused and prosecutrix was found was not too remote to be admissible; the lapse of time going only to the weight of the evidence.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. & 54; Dee. Dig. ⅜ 46.]
    6. Ckiminal Law (§ 363) — Admission of Evidence.
    Evidence by the woman at whose house prosecutrix boarded that prosecutrix was nervous and was not able to stand up when she arrived home on the night of the alleged rape was admissible as res gestae, in connection with her other testimony that prosecutrix called witness as soon as she got home, at which time she stated, “That ornery dog has ruined me,” and that prosecutrix’s hair was entangled and her face and body bruised, and she was in a generally dilapidated condition.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    7. Criminal Law (§ 404) — Demonstrative Evidence.
    In a rape prosecution, prosecutrix’s shoe with a portion of the heel off, a piece of the heel found at the place of the alleged rape, prosecutrix’s bent hat pin, and accused’s tie pin also found there, as well as prosecutrix’s torn waist and other clothes, were all properly admitted in evidence on the question of force.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    8. Courts (§ 66*) — Term of Court — Extension.
    Where the trial was not completed by the time the regular term would have expired by law, the court could extend the term until the conclusion of the trial under Rev. Civ. St. 1911, art. 1726, permitting it to do so in such cases.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 231-242; Dec. Dig. § 66.]
    9. Criminal Law (§ 1090) — Appeai>-Bill of Exceptions.
    In the absence of a bill of exceptions reserved thereto, the Court of Criminal Appeals cannot review the trial court’s action in overruling a motion to quash the venire.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    10. Criminal Law (§ 1090) — Appeai>-Bill of Exceptions — Admission of Evidence.
    In the absence of a bill of exceptions, the Court of Criminal Appeals cannot consider error in denying a new trial for alleged error in admitting evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    11. Criminal Law (§ 1124) — Appeal—Bill of Exceptions — Contents—Evidence. .
    Where the order denying a motion for a new trial for misconduct of the jury recited that the court heard the motion and “the evidence adduced thereon,” error in denying the motion cannot be reviewed in the absence of a bill of exceptions containing the evidence heard by the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 2939, 2946-2948; Dec. Dig. § 1124.]
    12. Criminal Law (§ 594) — Continuance— First Application — Discretion of Court.
    Under the direct provisions of Code Cr. Proc. 1911, art. 608, subd. 6, the granting of even a first application for a continuance to procure absent witnesses is addressed to the trial court’s discretion, though such discretion is not an arbitrary one.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    13. Criminal Law (§ 959) — New Trial — Grounds — Denial of Continuance — Affidavit of Witnesses.
    Alleged error, for which a new trial is asked, in denying a first application for a continuance to procure absent witnesses is entitled to greater consideration if the affidavit of the witness that he would testify as alleged is attached to the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. § 959.]
    14. Criminal Law (§ 596) — Continuance-First Application — Cumulative Evidence.
    The fact that the evidence, to procure which a continuance is asked -in a criminal case, is cumulative in its nature is not ground of itself for overruling a first application for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 1328-1330; Dee. Dig. § 696.] '
    On Motion for Rehearing.
    15. Criminal Law (§ 1124) — Appeal—Bill of Exceptions — Evidence.
    Since a sworn motion for a new trial is merely a pleading, if it is desired that exhibits attached to the motion be considered as evidence they should be introduced as such, and the fact that no other evidence was introduced should be shown by the bill of exceptions in order to have error in overruling the motion reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    16. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    Supreme Court rule 53 provides that there shall be no bill of exceptions as to matters which at common law constitute the record proper, as the citation, pleadings, and motions for new trial, etc., and rule 55 provides that rulings upon applications for continuance and other incidental motions, and upon evidence and other proceedings not embraced in the two preceding rules, must be presented in a bill of exceptions to become a part of the record. Held, that evidence introduced on a motion for new trial must be preserved by bill of exceptions to enable the C.ourt of Criminal Appeals to review a ruling denying the motion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. §■ 1090.]
    17. Criminal Law (§ 1166) — Continuance.
    There was no abuse of discretion in denying a first application for a continuance in a rape case to procure witnesses to show that prosecutrix’s reputation for chastity was bad before the alleged offense, where the physical facts and the evidence conclusively showed that prosecutrix did not consent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. § 1166.]
    Appeal from District Court, Sherman County; D. B. 1-Iill, Judge.
    Earl Sharp was convicted of rape by force, and he appeals.
    Affirmed.
    Moore, Harrington & Powell, of Dalhart, C. F. Rudolph and M. Cammack, both of Stratford, Tatum & Tatum, of Dalhart, and W. F. Ramsey, of Austin, 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
    
    
      
      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 by force, the alleged injured party being a young lady school teacher of Sherman county, and his punishment assessed at 50 years’ confinement in the penitentiary.

It appears from the record that court convened the 13th day of January and adjourned on the 28th day of January. When this case was called for trial on the 24th day of.January, appellant presented an application for a change of Venue. It was contested by the state, and the court after hearing the evidence overruled the motion. The bill presenting the evidence heard on the motion was not filed until March 26th, two months and two days after court had adjourned for the term. Article 634 of the Code of Criminal Procedure provides: “The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made.” Thus it is seen by the plain mandate of the Code we have not the authority to revise the order overruling the motion for a change of venue in this case. McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558, and cases cited in section 681, White’s Ann. Crim. Proc.

The rape is alleged to have occurred shortly after dark on Friday evening, January 17th, of this year. That afternoon appellant had gone to the place where the young lady boarded and carried her automobile riding. During the drive they went to the town of Stratford, and appellant got out and went in the store of A. W. Allen, leaving the young lady seated in the automobile, and while in the store remarked: “That he had plenty of c-k in the wagon, and that he had plenty of money to pay his fine, and that if he could not make her spark you (the person to whom he was talking) come and turn her over; that he was not afraid of the grand jury.” As the alleged rape is known to have occurred shortly after these remarks were made, the testimony was clearly admissible. The young lady was then sitting in the automobile in front of the store, and the testimony clearly shows he referred to her, the bent of his mind, and throws light on the subsequent conduct of defendant the same evening.

Appellant objected to Harry Ingram being permitted to testify that on the morning of the 18th, being the next day after the alleged offense, he found a hat pin in the automobile driven by appellant on the night of the alleged rape, and that it was bent. This hat pin so found was identified as the hat pin of Miss Henderson, and she testified that when appellant assaulted her and threw her on the ground, in resisting the rape, she drew her hat pin out, undertook to strike appellant with it, when it bent; he taking it away from her and subsequently threw it into the automobile. The fact that her hat pin was found in the automobile bent tended strongly to support her testimony, and the testimony was properly admitted.

Appellant also objected to Noble Kelp being permitted to testify that on Sunday morning, after the offense was alleged to have been committed on Friday night, “he examined a spot of ground on the side of the road between Stratford and Mr. Timber-lake’s (the place where Miss Henderson boarded); that there was a circle about four steps in length and about four steps from the road, and it looked like some one had gouged their toes or heels in the ground.” Defendant contends the time was too remote; that it was not' shown this was the spot where the offense was committed nor that it was in the same condition on Sunday morning that it was Friday night; and that it was not shown that this condition was produced by appellant. This witness testified: “I examined a part of the road between tne Shepherd place and Timberlake’s after this occurrence. I was at Mr. Timberlake’s that night and I examined the place Sunday morning after the alleged rape. I found the ground was dug up and scratched up. It looked like it was sorter prodded up with shoe heels. The grass was all torn up and I found a tie pin which I have got. I found a shoe heel (that is, one little layer of the heel), and I found a piece of glass, which I supposed was out of an automobile light. I found some lady’s hairpins which were lying on the ground right where the ground was scuffled up. They were lying on the left-hand side of the road as you go out to Timberlake’s from town.” The “tie pin” found there was identified as the pin of appellant. Miss Henderson’s shoe was shown to have lost a layer off of the heel, and this layer of the heel found at this place was shown to belong to Miss Henderson’s shoe, and the other property found on the ground was shown to be hers. Under such circumstances, the testimony was admissible, appellant’s pin and her shoe heel being found there, and the testimony tended strongly to support her contention that she resisted the assault and was overcome by force. It is not too remote, being not over 40 hours after the occurrence, but the fact that this much time had elapsed might go to its weight but not to its admissibility.

Appellant objected to Mrs. Timberlake being permitted to testify that when Miss Henderson arrived home “she was nervous and was not able to stand up.” To take isolated expressions like this and object to them and not present the setting nor the connection in which they were admitted do not present the matter sufficiently, and the bill is too incomplete to call for a revision. But what this witness did testify is that when Miss Henderson arrived home she called, “Mrs. Timberlake! Mrs. Timberlake!” and as she got to her Miss Henderson remarked, “That ornery dog has ruined me.” That Miss Henderson’s “condition at that time was unrecognizable almost Her face was just blue and her neck clear down to there (indicating). She was blue clear down to her breast, and her hair was just stringing down her back, tangled and full of grass. She had on a long coat and it was just covered with grass. I didn’t untangle her hair until Sunday. Her hair was just in tangles and full of grass. The hairpins were bent, several of them bent double and just sticking in her head. I had to feel over her head and get them out. I took some hairpins out of her hair on Friday night and they are here some place. I gave them to my husband. She was excited and very nervous when I got to her that night and she couldn’t stand. She had some bruises on her body; her left hip was bruised; and she had some bruises on the lower part of her limbs from her knees up. They were not large bruises, just small bruises. We could see them plainer next morning than that night. There were several red places on her body. She and I removed her corset, and it is here and they can see it. The stays are broken; I think they were all broken except a few. One was broken at the waist line and the others down lower. I don’t know whether her supporters were loose or not. She was not able to set up and I felt of her pulse and she hardly had any to feel. She was cold as ice all over her body. She was nervous. We worked with her until after 2 o’clock and she then seemed to get quiet and warm in about four hours.” Under all of our decisions this testimony was clearly admissible, the remarks being res gestas of the transaction, and certain it was permissible to show her condition.

It was also permissible for the state to introduce the shoe in evidence with a portion of the heel off, the piece of the heel found by Noble Kelp, the bent hat pin identified as the property of Miss Henderson, the “tie pin” identified as belonging to appellant, the torn waist, and other articles of wearing apparel. They all shed light on the main contested issue, Was or was not force used?

The appellant requested four special charges presenting his- contention in the ease in the most favorable light, and they were all given by the court. These and the charge of the court presented fairly every issue raised by the testimony, and the charge as given, viewed in the light of the special charges as given, is not subject to the criticism contained in appellant’s motion for new trial. In addition thereto no error is sought to be specifically pointed out but only general objections made.

It appears that this case went to trial during the term fixed by law, but that it was not completed by January 25th, the .time when the term would have expired by limitation, and the court entered an order on that date extending the term of court until the conclusion of the trial of this case, the one in which it then was engaged in trying. Article 1726 of the Revised Statutes provides that, when the court is in the midst of a trial, it may extend the term until the conclusion of said trial, and the court in this instance did not err in so doing.

Those grounds in the motion for new trial complaining of the action of the court in overruling the motion to quash the venire, etc., cannot be considered, as no bills of exception were reserved.

Neither can we consider those grounds in the motion complaining of the action of the court in admitting certain testimony to which no bills of exception are incorporated in the record.

However, in the motion for new trial it is contended that two of the jurymen, Caldwell and Smith, had formed and expressed an opinion in this case prior to the time they were accepted on the jury, and the affidavits of Messrs. Rudolph, Altum, and Welsheimer are attached to the motion as exhibits stating that Caldwell had said when speaking of this matter that appellant ought to be castrated, and that Smith had said appellant “ought to have his neck stretched.” The court in overruling the motion for new trial enters the following judgment: “On this day came on to be heard the motion of the defendant, Earl Sharp, herein for a new trial, and the defendant being present, and said motion being presented to the court, and the court, having heard and considered said motion, the evidence adduced thereon, and the argument of counsel, is of the opinion that the law is against said motion. It is therefore ordered, adjudged, and decreed by the court that the said motion be and the same is hereby in all things overruled.” If the court “heard the evidence thereon” as he states in his judgment, this evidence ought to have been presented by a bill of exceptions and placed in the record that we might determine whether or not the court abused the discretion confided in him by law. If the only evidence offered were the affidavits attached to appellant’s motion for new trial, this fact should be shown by a proper bill, and in the absence of any bill of exceptions we are left in the dark as to the evidence heard by the court, and as appellant has not by a proper bill brought to us the evidence heard on this ground in the motion, and the judgment states that “evidence was heard by the court and considered by him,” we would not be authorized to presume that the court acted improperly in the premises. We can never review the action of the court in any matter where the evidence heard and considered by him is not brought forward in the record.

The only other matter that need be considered is the action of the court in overruling appellant’s application for a continuance. As to the witness J. D. Rawlings, no diligence is shown. It is true it is stated that a subpoena was issued to Sherman county, but there is no allegation that this witness then or had ever lived in Sherman county, nor is the place of his residence stated. It is further stated in the application that the witness was out of the state, and, instead of issuing a subpoena to Sherman county (when he knew he was not in that county), appellant should have taken some steps looking to taking his depositions and then moved to postpone the case until the depositions could have been obtained, if he deemed the testimony material. • As to the other two witnesses, Mr. and Mrs. D. !<'. Burkhead, appellant alleges that they live either in Johnson or Tarrant county, and that he had subpoanas issued to both counties, and that he expects to prove by them that the reputation of Miss Henderson for virtue and chastity in 1911 and 1912 was bad. A telegram in the record from Johnson county states that these witnesses do not reside in Johnson county, while there is no return from the sheriff of Tarrant county, and we have no evidence that they reside in Tarrant county other than the general statement of appellant contained in his motion for new trial “that they are alleged to reside in Tarrant or Johnson county.” There is no specific allegation that they do so reside. It seems to us that, if they had resided in either of the counties, it could have been ascertained at least before the motion for new trial was acted on; and, if there was attached to the motion the affidavit of either of them that they would so testify, we would be inclined to give great weight to the application for a continuance.

But even a first application for a continuance is no longer a matter of right, but by our Code it is a matter to be addressed to the sound discretion of the-trial judge. Subdivision 6 of article 608, Code of Crim. Proc.; Abrigo v. State, 29 Tex. App. 148, 15 S. W. 408; McAdams v. State, 24 Tex. App. 86, 5 S. W. 826; Wooldridge v. State, 13 Tex.. App. 443, 44 Am. Rep. 708. Of course this is not an arbitrary discretion, for it is provided that after a motion for continuance is overruled, and the person on trial is convicted, if it should appear that the testimony of the absent witnesses was of a material character, and the facts set forth in the application probably true, a new trial should be granted.

And it is for this reason we state, if attached to the motion for new trial the affidavit of the witness that he would testify as alleged, the question is much more favorably presented. However, in this case it is shown that Miss Henderson was residing in Sherman county, was employed as a teacher in the public schools, and of all the witnesses summoned and introduced by defendant he propounded to none of them any question as to the reputation of Miss Henderson in the respect named, and we cannot say that, in view of the testimony on the trial, the court abused the discretion confided in him in holding that it was not probably true the absent witnesses would so testify if they were present. We know that, in the light of the record before us, we do not feel inclined to hold that the trial court abused his discretion and acted arbitrarily in the premises.

While we know that the fact that testimony which is cumulative in its nature is no ground for overruling a first application for a continuance, in this ease the testimony cannot be said to be cumulative, for in the record before us there is no testimony that the reputation of Miss Henderson for chastity and virtue is bad, but all the record would tend to show to the contrary.

The evidence is ample to support the verdict, and the judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at the last term of this court and on motion for rehearing the case was postponed at the request of appellant’s counsel to give them ample time to brief same. But two questions are presented on the motion for rehearing. First, that we erred in presuming that evidence was heard on the motion for a rehearing. If it had been a presumption of ours, then there would .be merit in appellant’s motion, but was it a presumption on our part? The order overruling the motion for a new trial reads: “On this day came on to be heard the motion of the defendant, Earl Sharp, herein for a new trial, and the defendant being present, and said motion being presented to the court, and the court, having heard and considered said motion, the evidence adduced thereon, and the argument of counsel, is of the opinion that the law is against said motion. It is therefore ordered, adjudged, and decreed by the court that the said motion be and the same is hereby in all things overruled.” Thus it is seen that the court in his judgment asserts, “The court having heard and considered said motion, the evidence adduced thereon, and-the argument of counsel,” etc., that the motion is overruled. Yet, we are asked to ignore this solemn declaration of the trial court in his judgment and find that he heard no evidence but only considered the affidavits attached to his motion for a new trial.

The motion for a new trial is but a pleading, together with the exhibits attached thereto, and, when it is sought to raise therein an issue extrinsic the record, it must be sworn to, yet swearing to it does not render it any the less a pleading in the case. And, if on the hearing of the motion appellant desires the exhibits attached to be considered as evidence, he ought to introduce them as such, and then if no other evidence is introduced, and his motion is overruled, appellant, in a proper bill, ought to show that fact, and then we would be authorized to review the action of the court. But when the court in his judgment recites he heard the evidence adduced on this ground of the motion and overrules it, without having the evidence before him, it is impossible for us to determine whether he ruled correctly or incorrectly, and we cannot review his action.

Appellant cites us to rules 53 and 55 of the Supreme Court, claiming that no bill of exceptions was necessary. They read:

Rule 53: “There shall be no bills of exceptions taken to the judgments of the court, rendered upon those matters, which, at common law, constitute the record proper in the case, as the citation, petition, answer, and their supplements and amendments, and motions for a new trial, or in arrest of judgment, and final judgment.”
Rule 55: “The rulings of the court upon applications for continuance and for change of venue, and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exceptions, signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the cause, and not otherwise.”

If these rules make anything plain it is that, if we are expected to review the action of the court on any matter which did not constitute a part of the record at common law, such matter must be presented by bill of exceptions. Of course, if appellant’s motion for new trial only complained of errors in the record as made on the trial, it is not necessary to set up those matters in a bill of exceptions; but when the motion for new trial sets up matters extrinsic the record, and evidence is heard thereon, then it is necessary that the evidence be preserved by bill of exception in order to enable us to intelligently pass on whether the ruling of the court was correct or incorrect. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263.

The only other ground in the motion for rehearing is that the court erred in overruling his application for a continuance. This is so thoroughly discussed in the original opinion we hardly deem it necessary to do so again. The physical facts on the ground, the condition of the young lady when she arrived home, and the other evidence in the case show conclusively it was not a case of intercourse by consent, and, if all he says the absent witnesses would swear was admitted, that her reputation for chastity was bad the year prior to this alleged rape, it could not and would not probably change the verdict. Such testimony would only be admissible as tending to show consent, and, as hereinbefore stated, the evidence overwhelmingly refutes this idea or plea.

The motion for rehearing is overruled.  