
    SIMMONS v. STATE.
    (No. 4070.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.
    On Motion for Rehearing, May 31, 1916.)
    1. Criminal Daw &wkey;372(l) — Evidence — Other Offenses — Rape.
    In a prosecution for rape on a female under the age of consent, evidence of sexual intercourse between the parties occurring subsequent to the date of that for which the state elected to prosecute was admissible for the purpose of showing a continuous course of conduct.
    [Ed. Note. — For other cases, see Criminal Lwv^ Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;-
    2. Criminal Law &wkey;1171(3) — Trial—Statements oe Counsel.
    In a prosecution for rape, a slight difference between the statement of the county attorney as to the testimony of a witness, and the testimony as given, one being a legitimate deduction of the other, was not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127; Dee. Dig. &wkey;1171(3).]
    3. Criminal Law <&wkey;>469 — Opinion Evidence —Expert Testimony — Questions for Jury.
    In a prosecution for rape, whether it is the natural desire and impulse of a girl to deny the guilt of a lover and charge some other man with having been the cause of her downfall was a question upon which the jury could pass, and not a subject for expert testimony of a physician.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. <&wkey;469.]
    4. Criminal Law &wkey;1090(10) — Appeal and Error — Preservation in Lower Court of Grounds for Review.
    In a prosecution for rape, evidence as to incompetency of a juror, consisting of an affidavit as to an opinion expressed by the juror, not being preserved by a bill filed in term time, will not be considered on appeal.
    [Ed. Note. — For other cases, see. Criminal Law, Cent. Dig. §§ 2789, 3204; Dec. Dig. <&wkey; 1090(10).]
    5. Criminal Law &wkey;1098 — Appeal and Error-Statement of Facts — Statute.
    Under Vernon’s Ann. Code Cr. Proe. 1916, art. 846, providing that, in criminal cases where felony is charged, a stenographic record of the evidence shall be kept as in civil cases, and a condensed statement of facts prepared in appealed cases, evidence placed in the record in question and answer form, and not reduced to narrative form, will not 'be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. &wkey;109S.j
    6. Criminal Law <&wkey;1124(l) —New Trial— Affidavit.
    In a prosecution1 for rape, where there was no affidavit attached to a motion for new trial, in support of an allegation that the jury heard other evidence than that adduced on the witness stand, and no evidence, it will not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2947; Dec. Dig. <&wkey; 1124(1).]
    7. Criminal Law <&wkey;1056(l) — Appeal and Error — Presentation in Lower Court of Grounds for Review.
    In a prosecution for rape, where before the indictment was read or any evidence introduced the defendant stepped just outside the door of the courtroom and spoke to his son while the court was instructing the jury as to their duties, as defendant and his counsel, while aware of the proceedings, reserved no exception at the time and did not complain of the matter until after verdict, and the court in approving the bill states that the defendant could and would have heard all that was said, there was no error.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. &wkey; 1056(1).]
    Appeal from District Court, Donley County; Hugh L. X-Iumphres, Judge.
    J. A. Simmons was convicted of rape, and he appeals.
    Affirmed.
    Simpson & Steed, of Clarendon, and A. M. Mood, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape upon his granddaughter, and his punishment assessed at imprisonment for life.

It appears that appellant, the grandfather of Dillie Mae Cox, took the little girl when she was hut 6 years of age and raised her; she being past 15 at the time of the trial. In her direct examination she testified to a course of conduct covering several years, and testified to acts of intercourse covering two or three years, giving as the last date an act that took place shortly after her fifteenth birthday. Appellant on cross-examination developed the fact, according to the girl’s testimony, that the acts had been continuous, occurring as often as two or three times a week. After the state had closed its case, the appellant filed a motion requiring the state to elect upon which act it would seek to ask for a conviction. The motion was sustained, and the state elected the act testified as occurring about February 1, 1915, and the court in his charge limited the purpose for which the testimony of other acts could be considered, and also gave three special requested charges by appellant on this issue absolutely limiting the testimony, and instructing the jury they could convict appellant only in the event the offense was committed on the date selected, and that any other acts testified to could be considered only, if considered at all, in passing on whether or not an act of intercourse took place on the date on which the state had elected to prosecute. After the state had elected, the appellant requested the court to instruct the jury not to consider for ány purpose any evidence of an act or acts occurring subsequent to the date selected, and reserved an exception to the failure of the court to give this charge. We so thoroughly discussed this question in Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, we do not deem it necessary to again review the authorities. In this case it is shown that all the acts tend to show, and do show, but one continuous course of conduct. Mr. Wigmore, in his work on Evidence and late supplement thereto, in section 398, carefully collates the authorities from all states in the Union, and cites as sustaining the rule obtaining in this court, among other cases, People v. Soto, 11 Cal. App. 431, 105 Pac. 420; State v. Sebastian, 81 Conn. 1, 69 Atl. 1054; State v. Henderson, 19 Idaho, 524, 114 Pac. 30; People v. Gray, 251 Ill. 431, 96 N. E. 268; State v. Brown, 85 Kan. 418, 116 Pac. 508; State v. Schuel-ler, 120 Minn. 26, 138 N. W. 937; Woodruff v. State, 72 Neb. 815, 101 N. W. 1114; People v. Thompson, 212 N. X. 249, 106 N. E. 78, L. R. A. 1915D, 236, Ann. Cas. 1915D, 162; Morris v. State, 9 Okl. Cr. 241, 131 Pac. 731; State v. Richey, 88 S. C. 239, 70 S. E. 729; State v. Rash, 27 S. D. 185, 130 N. W. 91, Ann. Cas. 1913D, 656; Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 972; State v. Willet, 78 Vt. 157, 62 Atl. 48; State v. Mobley, 44 Wash. 549, 87 Pac. 815, and other cases.

Appellant requested the court to instruct the jury as follows:

“You are instructed not to consider for any purpose the argument of the county attorney wherein he makes the statement that the witness Lillie Mae Cox swore that before she went to Dallas the defendant offered her a dollar to tell her mother that Mack De Board was the cause of her trouble”—contending there was no testimony in the record upon which to base such remarks.

The girl testified, as shown by the statement of facts:

“The reason that I told my mother that it was Mack De Board, my grandfather (appellant) told me to lay it on Mack. Two or three days before I went to Dallas, while we were heading maize, my grandfather began to cry and asked me for God’s sake, when I went to my mother, not to lay it on him. He said he would give me a dollar if I would let Mack do me that way, so if I was in this condition I would lay it on him.”

While the exact language used by the county attorney was not used by the girl, yet there is so slight difference in the meaning of the two statements, one could be used as a legitimate deduction of the other.

Appellant desired to prove by Dr. E. P. Hamm that, from his knowledge and experience in dealing with young girls, it was always the natural desire and impulse of a girl to deny the guilt of her lover and charge some other man with having been the cause of her downfall. We do not see how qualifying as an expert physician would render the doctor any more competent to testify to such fact than any other observant man. While the girl admitted she loved Mack De Board and had been .engaged to marry him, yet she also- testified that she also loved her grandfather (appellant). Appellant cites no authorities in support of his contention, and we know of none. As to whether such would be the natural inference to be drawn was a question of legitimate argument, and we suppose was made by appellant’s counsel, and the jury was just as capable of passing on such question as a learned expert physician.

The court rejected the bill seeking to complain that juror McOlain was an incompetent juror by reason of having expressed an opinion. Attached to the motion for a new trial is the affidavit of Messrs. Edmondson and Brooks, saying that the juror had expressed an opinion in their presence. The state, in affidavit filed, contested the motion; Mr. McClain swearing he used no such language. By the record it shows that the court heard evidence on the motion, and the evidence is before us, but not in such shape as we can consider it. The term of court at which appellant was convicted adjourned January 29th, while the statement of facts on the motion for a new trial was not filed until April 22d. It has been the unbroken rule of decision in this court since the rendition of the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, that such evidence must be preserved by hill filed in term time. The evidence is not reduced to narrative form, but is placed in the record in question and answer form, and this is no longer permissible, had it been filed in time. Kemper v. State, 57 Tex. Cr. R. 355, 123 S. W. 131, and cases cited under article 846, Vernon’s Crim. Proc. p. 843. However, we will state we have read this evidence, even though in question and answer form, and, if we could consider it, the evidence of Messrs. Edmondson and Brooks shows that, if Mr. McClain used the language they attributed to him, it had no reference to this case, but to another and different case. The testimony of Mr. McClain and Mr. Butler would authorize the trial judge to find that no such language was used.

There is an allegation in the motion alleging that the jury heard other evidence than that .adduced on the witness stand after their retirement. There is no affidavit attached to the motion for a new trial in support of such an allegation, and no evidence we can consider to sustain such an allegation.

The only other bill in the record alleges that after the jury had been impaneled, but before the indictment was read or any evidence introduced, the defendant stepped just outside of the door of the courtroom and spoke to his son. The court at this time was instructing the jury as to their duties. The defendant has the right, of course, to be present during all the proceedings had on his trial; but appellant and his counsel, while aware of the proceedings, reserved no exception at the time, and did not complain of the matter until after verdict. The court in approving the bill states that the defendant was in such proximity to him and the jury “that he could and would have heard all that was said.” Under such circumstances, the bill presents no error.

The other questions sought to be raised present no error, and the judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing presenting but one question. Appellant says:

“This honorable court erred and evidently by oversight overlooked the one point that to the writer’s mind seemed most important, in this: That appellant in his brief presented as best he could the proposition that there was no testimony in the record supporting- the act relied upon by the state for a conviction, in that the state elected upon, and the court charged the jury upon, an act in the barn at defendant’s home, and, as pointed out in the brief, there is no testimony of such act in the record; the evidence being that the act in the barn occurred in 1914, long prior to the date "(January 12, 1915) where limitation started.”

It is true the record discloses that Lillie Mae Cox testified to an act of intercourse occurring at the barn, 1914, but appellant is mistaken in stating that this is the only act she testified to occurring at the barn. She testified to an act occurring at the barn just prior to her fifteenth birthday. On direct examination she testified:

“The next time he had intercourse with me between January and my 'birthday was about two or three days before the 18th of February (1915). I know because it was my monthly time on the 18th of February.”

It is also true that on direct examination she did not fix the place where this act of intercourse took place, but on cross-examination she did so. Appellant’s attorney was questioning her about not telling him about this act when she talked to him. She testified:

“I said there was no act during that time, but I never thought ^about this act until late last night. The act was down at the barn one evening. We went down there to strip feed, and the reason I remember it is because he said: ‘We better right now while we have a chance, because it wouldn’t be but a little time until my monthly time.’ ”

The court in his charge limited the jury to a conviction for this act of intercourse, and gave three of appellant’s charges so limiting the testimony, and instructed the jury that if they did not find beyond a reasonable doubt this act occurred they would acquit appellant. Appellant’s able counsel evidently overlooked the fact they in their cross-examination, before the state elected, had caused her to definitely fix the time and place that this act occurred.

The motion for rehearing is overruled. 
      @=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     