
    CAMPBELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1911.
    On Motion for Rehearing, Nov. 15, 1911.
    Rehearing Denied Dec. 13, 1911.)
    1. Juey (§ 70) — Special Venire-Number of Juboes — Judicial Discretion.
    It was not an abuse of discretion to refuse accused’s request for a venire of 100 instead of 50 men on the ground that, as a codefendant had just been tried, doubtlessly the facts shown on that trial had been extensively circulated in the county, especially since in selecting the jury accused procured 11 jurors out of the panel summoned.
    [Ed. Note. — Por other cases, see Jury, Cent. Dig. § 323; Dec. Dig. § 70.]
    2. Rape (§ 18) — 'Women May Be Guilty.
    Under Pen. Code 1895, art. 75, making persons who aid offenses liable as principals, a woman may be guilty of rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 21; Dee. Dig. § IS.]
    3. Rape (§ 41) — Evidence—Age op Prosecu-trix.
    In a trial for rape of a child under 15 years old, it was proper to refuse to cause pros-ecutrix to put on a certain suit which she had worn that the jury might see her in a skirt longer than the one worn by her at the trial to show that she would appear to be 15 years old, where there was no testimony that prosecu-trix was over 14 years, or that accused was misled as to her age.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 60; Dec. Dig. § 41.]
    4. Witnesses (§ 277) — Gross- Examination op Accused.
    3n the trial of a woman for aiding rape of a child under the age of consent, it was not reversible error to permit the state to show on accused’s cross-examination that codefendant had intercourse with accused immediately after the rape, and in the child’s presence; accused having admitted several acts of intercourse with codefendant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 979-984; Dec. Dig. § 277.]
    5. Cbiminal Law (§ 433) — Evidence — Admissibility — Lettebs.
    In a trial for rape, a letter stating “A— is all right, she is sticking like glue,” was properly admitted where accused testified that she wrote the letter to her codefendant on the day after the offense, and that “A — ” referred to prosecu-trix.
    [Ed. Note. — 'For other cases, see Criminal Law, Cent. Dig. § 1022; Dec. Dig. § 433.]
    6. Cbiminal Law (§ 517) — Evidence— Confession — Admissibility.
    In a rape trial, a written confession made shortly after accused’s arrest, stating her connection with the codefendant and all surrounding circumstances, was properly admitted in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 517.]
    7. Criminal Law (§ 338) — Evidence—Relevancy.
    In a rape trial, a letter written by accused’s mother was properly excluded from evidence when it did not bear on any issue in the case.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 338.]
    8. Criminal Law (§ 531) — Confessions— Validity — Presumptions.
    A written confession meeting all legal requirements is prima facie evidence that the confessor was duly ' warned by the person to whom the statement was made that he did not have to make a statement, and that, if he did, the same could be used against him, but the. presumption that the confession was voluntarily made is not conclusive, and, if the evidence raises an issue as to its voluntary character or the confessor’s understanding as to what he was doing or as to' whether he made certain statements therein contained, the issue should be submitted to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1212-1217; Dee. Dig. § 531.]
    9.Criminal Law (§ 59) — Principals—Who Are.
    Mere personal presence will not constitute one a principal in an offense.
    [Ed. Note. — For other cases, see , Criminal Law, Cent. Dig. §§ 71-74, 76-81; Dec. Dig. § 59.]
    10.Criminal Law (§ 826) — Instructions— Requests — Time for Making.
    An instruction curing an omission in the charge should be given, though not requested until the jury was ready to retire.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dec. Dig. § 826.]
    On Motion for Rehearing.
    11.Rape (§ 59) — Instructions—Refusal.
    In a trial for rape, it was proper to refuse to instruct that unless accused induced prosecu-trix to accompany codefendant on the occasion in question, and aided in the offense, etc.,. accused could not be convicted where the court instructed that, though codefendant was guilty, accused should be acquitted if she was not present, or, if present, did not aid codefendant by acts or encourage him by words.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    12. Criminal Law (§ 1110) — Appeal—Bill op Exceptions — Conclusiveness.
    The Court of Criminal Appeals cannot look to other parts of a record in aid of a bill of exceptions which accused has accepted and filed, and he is bound by qualifications therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917; Dec. Dig. § 1110.]
    13. Criminal Law (§ 1111) — Appeal—Bill op Exceptions — Conclusiveness.
    On appeal from a conviction, accused is bound by a qualification in a bill of exceptions to refusal of an instruction submitting an issue as to the voluntary character of a confession, stating that there was nothing in the proof to indicate that accused did not fully understand everything in the confession, and that the proof showed that it was freely and voluntarily made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § 1111.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Ruth Campbell was convicted, of rape, and she appeals.
    Affirmed.
    Evans & Carpenter, for appellant. C. E. Mead, Asst. Atty. Gen., Walter O. Woodward, Asst. Atty. Gen., C. A. Sweeton, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Kej No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted In the district court of Hunt county under an indictment charging her with rape, and her punishment was assessed. at five years confinement in the penitentiary.

This is a companion ease to the case of Luther Hutcherson, recently affirmed by this court. 136 S. W. 53. Appellant in this case was convicted as a principal upon the theory that she aided, assisted, and encouraged in the perpetration of the crime charged. Appellant has reserved some 20 bills of exception, but, as she has presented all of her supposed errors in her assignments, we will consider them in the order in which they are there presented.

1. The first assignment complains of the refusal of the court at the request of counsel for defendant to order a venire of 100 instead of 50 men. As stated before, this is a companion ease of the Luther Hutcherson Case. Luther Hutcherson was tried for the same offense on the 10th day of October, 1910, in Hunt county, and was convicted, and his punishment assessed at 20 years in the penitentiary. On the 10th day of October this case was set for trial on the 31st day of October, 1910. At the same time the court ordered a special venire to be drawn of 50 veniremen in this ease which was to be returnable on October 28, 1910. At the time of the ordering of this venire, counsel for the defendant suggested that, as ,the Luther Hutcherson Case had just been tried and doubtless the facts proven upon the trial had been extensively circulated in Hunt county, that the court should order a venire of 100 men, instead of 50, in this case. The court refused to adopt the suggestion of appellant’s counsel, and, as before stated, ordered a venire of 50 men only. Appellant’s bill No. 1 shows that some time between the day upon which the trial was begun on October 31st and December 21st, at which time said bill was filed, appellant took exception to said action of the trial court. The statute provides that the court shall order a special venire for the trial of cases of the nature of this case, and places it within the discretion of the court as to the number of veniremen to be drawn. The court qualifies the bill of exception taken by the appellant by stating that in selecting the jury when this case was called for trial counsel for appellant procured 11 jurors out of the panel summoned, and that, therefore, he was not injured by the refusal of the court to have more than 50 men summoned on this venire. The court did not abuse his discretion in fixing the number of veniremen at 50.

2. The second assignment urges the insufficiency of the indictment, first, because the indictment shows on its face that the appellant is a woman, and, therefore, could not be guilty of rape; second, because it is not shown by said indictment that defendant had unlawful intercourse in giving such aid or encouragement as alleged therein. Article 75 of the Penal Code of 1895 provides: “When an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who being actually present keep watch so as to prevent the interruption of those engaged in committing the offense, such person so aiding, encouraging or keeping watch, are principal offenders and may be prosecuted and convicted as such.” The evidence for the state in this case shows that the appellant, Ruth Campbell, was very intimate with the said Luther Hutcherson, who actually committed rape upon one Arminta Scott; that she induced the said Arminta Scott, a female under 15 years of age, to accompany Luther Hutcherson and herself to the woods for the purpose of having Arminta Scott submit to carnal intercourse' with the said Hutcherson; that she was present at the time said carnal intercourse was had by the said Hutcherson with the said Arminta Scott, and held her while the act was accomplished. Under these facts, she would be a principal, and could be convicted as such under the law. A woman may be guilty of rape as an abettor or principal. See State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; 3 Chitty, Crim. Law, 811. See, also, 1 Hale, 629; 1 Harg. St. Trials, 388; State v. Dowell, 106 N. C. 722, 11 S. E. 525, 8 L. R. A. 297, 19 Am. St. Rep. 568; People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857.

3. The third assignment complains of the refusal of the court to permit Mrs. Walter Scott, mother of Arminta Scott, prosecutrix, to agree upon request of counsel for defendant to cause Arminta Scott to put on a certain coat suit said to have been worn by her on one occasion and appear before the jury trying this case, so that they might see her in a skirt longer than the one worn by her when she appeared as a witness in this case. Appellant insists that she expected to show to the jury by this method that the skirt to • the coat suit was much longer than the .skirt, she wore when she testified in this case, and that, if dressed in longer skirts, she would appear to be 15 years of age. The fact that her general appearance might mislead one as to her age would be no defense to the offense, especially in this case, in which no one testifies that the girl is over 14 years of age, but it is proven beyond a reasonable doubt that she is under the age of consent, and the court did not err in that particular. If the record disclosed that diligence had been used to ascertain the age, and one had been misled, a different question might be presented. But in this case the evidence raises no such, issue.

4. The fourth assignment presents the same matter as discussed under assignment No. 3, and presents no error.

5. The fifth assignment submits that the court erred in permitting the state on cross-examination of defendant to prove that Luther Hutcherson had intercourse with her after he had intercourse with Arminta Scott. The court qualified this bill as- follows: “This act of intercourse occurred immediately after the act of intercourse with Arminta Scott, and this witness answered that Arminta Scott was within 15 or 20 feet of her and Hutcherson when this act of intercourse occurred.” No reason is assigned in this hill why said testimony was objected to (McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941), nor is it pointed out how such testimony injured the rights of appellant. Appellant on direct examination at the instance of her counsel had testified that she had had several acts of intercourse with said Hutcherson, and, if the bill was in shape to be considered, it would not present error.

6. The sixth assignment complains of the admission in evidence of a letter set out in appellant’s bill No. 8, in which the expression is used: “A— is all right, she is sticking like glue.” The court in approving this bill says: “The proper predicate was laid before the introduction of this letter. The defendant testified that said letter was written by her to Hutcherson on the day following the alleged rape. She also testified that she referred to Arminta Scott when she used the expression: ‘A— is all right, she is sticking like glue.’ ” Under the evidence the letter was admissible.

7. Assignment No. 8 complains of the admission of so much of the confession of defendant as is set out in hills Nos. 10 and 11. Appellant shortly after her arrest made a written confession, and therein stated her connection with Hutcherson, and the incidents leading up to the alleged offense herein charged, and all the circumstances surrounding the parties at the time it is alleged Hutcherson committed the offense. There was no error in admitting this confession..

8. The ninth assignment complains of the exclusion of a letter written by defendant’s mother, set out in defendant’s bill No. 12. The letter did not remotely tend to prove or disprove any issue in the case, and it was therefore properly excluded by the court.

9. In a number of assignments, appellant complains of the action of the court in refusing to give several special instructions requested by defendant. It appears that the state introduced a confession of defendant, which met all the requirements of the law. This made it admissible, as it was prima facie evidence that she had been duly warned, by the person to whom the statement was .made, that she did not have to make a statement, and that, if she made a statement, the same could be used against her. But the presumption that it was voluntarily made under the given conditions is not a conclusive presumption, and if the evidence on behalf of defendant raises the issue that it was not a voluntary confession, or that she did not understand what she was doing, or that she did not make certain statements therein contained, the issue should he submitted to the jury. Appellant denied making one material statement in the confession. She further testified: “That she had about two or three hours prior thereto received a letter from her mother telling her that she was expecting to die, and was so worried and troubled that she could not tell what was in the statement.” If her testimony is to be believed, she was considerably agitated, at the time she made the confession. To this testimony the court may have given little credence, and the evidence may have been such that the jury would have given to it but little or no weight, yet, when the issue was raised, the court should have given that part of the special charge requested: “If you find from the evidence that at the time the written statement was taken down that she had received news a short time before that her mother was in a dying condition, and at the time she did not understand and comprehend the meaning and import of the written statement, or if you have a reasonable doubt as to whether she so understood and comprehended the same, you will not consider the confession embodied in the statement as evidence in this case.”.

10. Again, the state’s evidence shows that appellant was personally present, aiding and abetting Luther Hutcherson in the commission of the offense. Appellant in her testimony admits her presence, but positively denies aiding, encouraging, or doing any act or making any statement that tended in any degree to cause the girl to submit, or Hutcherson to accomplish his purpose. Mere personal presence will not in law constitute a person a principal, and the charge requested by appellant presenting her theory of the case should have been given. It may be that the charge was not requested until after the jury was ready to retire, but one can complain of an omission in the charge in a motion for a new trial, and if appellant’s counsel called the attention of the court to such omission, even as the jury was ready to retire, the court should supply the omission. Appellant, requested the court to charge the jury: “Unless you believe from the evidence beyond a reasonable doubt that Ruth Campbell lured and induced Arminta Scott to accompany Luther Hutcherson on the occasion in question, and unless you believe beyond a reasonable doubt that the said Luther Hutcherson was unable to have intercourse with Arminta Scott, and, with the intent to assist him and aid him in effecting a penetration, the said Ruth Campbell held the said Arminta Scott’s hands or legs or by some other act aided the said Luther Hutcherson to accomplish such purpose, than you will acquit the said Ruth Campbell.” This charge was applicable to the evidence of the defendant. As the charge of the court did not affirmatively present appellant’s , theory of the case, the jury might have been misled by the fact that she admitted she was present,- and merely waited out of sight while the offense was committed, had gone to the place with Hutcherson and the prosecuting witness, although denying she knew his purpose.

The other assignments present no error, but, on account of the matters herein pointed out, the judgment is reversed, and the cause remanded.

DAVIDSON, P. X, absent.

On Motion for Rehearing.

HARPER, J.

At a former day of this .term this cause was reversed and remanded. The state has filed a motion for a rehearing, and earnestly insists that the court was in error. After carefully reviewing the matters, we adhere to the opinion that if at the time the court reads his charge to the jury, and the jury is about to retire, the defendant presents a special charge calling the court’s attention to an omission in the charge, the court should have the jury returned to the box, and supply such omission. However, in considering the case before, our attention was not called to the fact that the court had given what is termed a “supplemental charge,” and, it being on a different page to the main charge of the court, we overlooked it. This supplied the omission in the charge. In this supplemental charge the jury was instructed: “If you believe from the evidence that the said Luther Hutcherson had carnal knowledge of the said Arminta Scott at the time and place alleged in the indictment, but the defendant, Ruth Campbell, was not present at the time and place of said act of intercourse, if any, or if you believe she was present at said time and place and knew the unlawful intent of the said Hutcherson, if any, but did not aid by acts or encourage by words the said Hutcherson in the performance of the unlawful act, if any, or if you have a reasonable doubt as to either of these issues, you will acquit the defendant.” This, of course, covers the omission in the main charge referred to in paragraph 10 of the original opinion, and had it been contained in the main charge, or had our attention been called to it in the briefs for the appellant or the state, we would not have fallen into the error of saying that the court had failed to present this theory of the case. We held that appellant was entitled to have her theory of the case submitted to the jury, •even though the request to do so came as the jury was about to retire. The court does this in this supplemental charge, and, of course, it was not necessary to give the special charge requested, inasmuch as this supplemental charge had been given, and as appellant’s • special; charges ■ were not presented to the court until the jury was about to retire, and were never filed with the clerk.

The state also insists that the court erred in paragraph 9 of the opinion. While the statement of facts shows that appellant testified to the facts stated in said paragraph of the opinion, yet our attention is called to the fact that the court in approving the bill qualified it as follows: “Approved with the following explanation: The proof shows that the defendant was duly warned by C. A. Sweeton, district attorney, before she made the statement. The proof further showed that she made said statement freely and voluntarily, and that, as she made same, it was reduced to writing, said writing containing the statutory warning. After said statement was reduced to writing, it was read over to her and she signed it. There was nothing to indicate that she did not fully understand everything in said statement.”

Appellant accepted this bill and filed it, and our attention is called that we cannot look to other parts of a record in aid of a bill of exceptions, and, when accepted and filed by appellant, he is bound by the qualification. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368; Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561; Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Brown v. State, 32 Tex. Cr. Rep. 119, 22 S. W. 596; Boyett v. State, 2 Tex. App. 93.

Thus, under the holdings of those cases, this court is bound by the qualification when accepted and filed by appellant, and as the judge says, “There was nothing to indicate that she did not fully understand everything in said statement, and that it was freely and voluntarily made,” in accordance with the former decisions of this court, the motion for rehearing is granted, and the judgment is now affirmed.  