
    JACOBS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.)
    1. Rape (§ 48) — Peosecution — Evidence-Admissibility.
    In a prosecution for rape, evidence of the complaints made by the prosecutrix at her first opportunity after the outrage and at a time when accused was attempting to force her to marry him is admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 67-09; Dec. Dig. § 48.]
    2. Rape (§ 44) — Evidence—Admissibility.
    In a prosecution for rape, where accused claimed that he was engaged to be married to prosecutrix and that the intercourse was with her consent, evidence that witness called prosecu-trix to the telephone at his place of business and after accused had spoken to her over the telephone, she requested the witness not to again call her to the telephone to speak to accused, and said that she did not wish to speak to him, is admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 63; Dec. Dig. § 44.]
    3. Rape (§ 43) — Prosecution—Evidence.
    In a prosecution for rape committed by force, evidence of the physical condition of the prosecutrix the mornjng after the rape is admissible ; accused having testified that the intercourse was with her consent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dee. Dig, § 43.]
    4. Criminal Law (§ 1092) — Appeal — Approval op Bill of Exceptions.
    Approval by the court of a bill of exceptions to the admission of evidence is not an admission of the grounds of objection contained therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    5. Rape (§ 40) — Prosecution—Evidence.
    In a prosecution for rape, evidence of the chastity of the prosecutrix is admissible, where accused claimed that the intercourse was with her consent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59; Dee. Dig. § 40.]
    6. Rape (§ 38) — Evidence—Admissibility.
    In a prosecution for rape, where accused had attacked the chastity of the prosecutrix, claiming that the intercourse was with her consent, instead of by force, as she testified, a witness, who had testified as to a telephone conversation had between accused and prosecutrix and prosecutrix’s request that she be not called to the telephone again to speak to accused, might testify as to a conversation had with accused, wherein accused asked him if he was going to testify against him and admitted that he was the person who conversed over the telephone, as an admission by accused that he spoke to prosecutrix over the telephone and as tending to corroborate prosecutrix.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. § 38.]
    7. Rape (§ 46) — Evidence—Admissibility.
    In a prosecution for rape, evidence that the prosecutrix stated, in a room adjoining the one in which accused and her brother-in-law were sitting, that she was going for a walk, is admissible, where she was attacked during that walk and the brother-in-law testified to hearing the remark.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    8. Criminal Law (§ 1099) — Appeal—Statement of Facts — Time of Filing.
    Where a conviction was had at a term which adjourned on the 14th of October, a statement of facts complaining that accused was placed in jail, which was filed December 12th, is too late to present any matter for review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    9. Rape (§ 51) — Prosecution — Evidence-Sufficiency.
    In a prosecution for rape, evidence held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dee. Dig. § 51.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Elbert Jacobs was convicted of rape, and appeals.
    Affirmed.
    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
    
   DAVIDSON, P. J.

The jury alloted appellant 25 years in the penitentiary under a charge of rape.

There are several bills of exception in the record, several of which may be grouped.

1. Bill of exceptions No. 1 shows Gul-lick testified that he heard prosecutrix crying and trying to talk, and heard defendant telling her to hush or shut up, something of that kind. “I asked what was the matter, and the defendant said, ‘It is nobody’s business,’ or ‘None of your business.’ I said, ‘Do you know who you are talking to?’ and snatched the defendant around, and he then said, ‘It don’t make any difference.’ I said, ‘Yes, it does too.’ She (the prosecutrix) was trying to talk, and the defendant told her to hush or shut up, and I said, ‘Well, come on.’ She then said something about a gun, and I made a rough quick search of the defendant and found no gun, and I said to the defendant, ‘Well, if you won’t let her talk here, we will let her talk in court,’ and I then carried the defendant to jail.” The witness Thompson testified, as shown by bill No. 5: “Defendant dragged prosecutrix across the sidewalk on the south side of the public square, and when she hit the pavement she hollered for help, and these little Syrian women come out there. They were talking so fast I don’t know what they were saying. I could not understand them.” This was excepted to by appellant. This and the for.mer bill were qualified by the judge as follows: “The occurrence testified by the witnesses Thompson, Gulliek, and Davis happened soon after the alleged assault and before defendant and prosecutrix had separated after the assault, in the presence of defendant, was a part of the res gestse, showed defendant’s state of mind, also was in the nature of an outcry by prosecutrix. By a reference to the statement of facts, it will clearly appear that this testimony was admissible.” There is another bill reserved to the testimony of a witness named Davis in connection with the same matter. It is unnecessary, we think, to recapitulate what is in the other bill. We are of opinion this testimony was clearly admissible, especially in view of the qualification by the judge.

Without going into a detailed statement of the evidence, which is very voluminous, it will suffice, perhaps, in this connection, to state that on the same night of the occurrences mentioned in the bills, the state proved by prosecutrix that appellant had forced intercourse with her down in the woods, a little southwest of the hospital building of the Cotton Belt Railroad in the western edge of the city of Tyler; that he had kept her under his authority and control until he reached the point mentioned by the witnesses in the city of Tyler; that he had employed a hack at that point for the purpose of conveying her with him to secure a marriage license and the services of a justice of the peace to perform the ceremony in the consummation 'of a marriage between them. Prosecutrix was protesting against this, and these occurrences mentioned in the bills happened. Under this condition of the record, there is, in our judgment, no valid reason why this evidence was not admissible before the jury. This was the first time that pros-ecutrix had been placed where she could make an outcry or statement to any one, and even if it had not been, it was a part of the purposes shown by the evidence of appellant, after having forced the woman into intercourse, to further force her to marry him on this particular night. See Thompson v. State, 11 Tex. App. 51; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep. 794. We are of opinion also it was admissible under Sharp v. State, 15 Tex. App. 171; also, under Grimes v. State, 141 S. W. 261.

2. There are two other bills, Nos. 2 and 3, which complain of the admission of ■the testimony of J. R. Davis, in substance, that defendant telephoned to Davis’ store and got him to have prosecutrix to come to the telephone on the afternoon and prior to the alleged offense at night. Appellant told Davis his name, and Davis recognized his voice. Davis testified that he heard what prosecutrix said to defendant over the phone, and that she said, “No, No, No,” all along; that after she left the telephone she told him not to call her to the telephone for defendant any more because she did not care anything for it at all. The court qualified this bill by stating: “The defendant claimed that prosecutrix had promised to marry him, had consented to the act of sexual intercourse with defendant on a number of occasions. and that his company was always welcomed by her. She, the prosecutrix, had testified to the contrary and claimed she had avoided and shunned defendant on all occasions. Defendant claimed that the conversation over the phone was with her consent and willingly engaged in by her. This she denied, and this testimony was admitted on this issue.” We are of opinion the court was correct in admitting this testimony under the above statement.

3. Bill No. 7 is to be disposed of under the qualification placed to bill of exceptions No. 5 by the court, unnecessary here to mention.

4. Bill No. 8 recites: That Adline Thomas, mother of prosecutrix, was permitted to testify that John Kennedy brought her, prosecutrix, home to her the morning after the outrage is alleged to have been committed. They got home before day. That she examined her daughter’s face and body to ascertain if there were any bruises on her, and found bruises on her neck on the right side. Her face was bruised up. Her body was bruised up, and blue places were found under her clothes where he had beaten her. That she made a liniment and rubbed her mightily. Prosecutrix was unable to be up. That she carried her to Dr. Lacy on that same day, and that no doctor had attended tier before she brought her to Dr. Lacy. That the doctor came out to see her. That she was confined to her bed off and on two or three weeks. Objection was urged to this, that it was irrelevant and not a part of the res gestae; that the same occurred when defendant was mot present and knew nothing about it; and that the same happened the following day after the alleged assault the previous night. These objections were overruled, and, we think, properly. The condition of the prosecutrix early the next morning and the day following was admissible in connection with the other facts for several reasons. It bore upon the question of force and consent. Prosecutrix testified that he had forced her, under circumstances that would constitute rape, using his physical strength, beating her, and also used a pistol to force his desires. This assault occurred something like half after. 10 or 11 o’clock at night. Her physical condition early the next morning are physical facts that might be proper evidence in the case.

5. Bill No. 9 recites that Hattie Bledsoe testified: “I have never heard anything of her (meaning prosecutrix) general reputation for virtue and chastity till this happened. It was good so far as I know. She was on the delicate order.” Objection was urged to this because there was no testimony by any witness for the defendant to call for this testimony in rebuttal, and the same was irrelevant and immaterial and prejudicial. These objections were overruled. These grounds of objection cannot be treated as matters of fact simply because the court approved the bill. They are not recited as matters of fact, but simply stated as grounds of objection. If we go to the statement of facts, we discover that the chastity of the prosecutrix was one of the issues of the case; appellant claiming that he had been having intercourse with her, and that others had been having intercourse with her. This she denied, and there is a very considerable amount of testimony in regard to this phase of the case. This authorized the evidence showing her general reputation as being good for chastity, and there is quite a lot of this testimony in the record from different witnesses. This testimony, we think, was clearly admissible. See Wilson v. State, 17 Tex. App. 526.

6. It is also objected in bill No. 10 that J. R. Davis was permitted to testify to the general reputation of prosecutrix for chastity. This was admissible also under the reasons above stated.

Bill No. 10 also reserved exception to the court’s action in permitting the witness to testify that he had a conversation with defendant after the alleged offense at a bridge near his (Davis’) store, and the conversation was relative to this case. The bill sets out the conversation that occurred between them. Defendant, as shown by the bill, was complaining that he (appellant) had been informed that Davis was going to testify that he (appellant) phoned to his house during the day before the offense is alleged to have been committed. Witness told appellant that he did not say that at all, and was going to testify to but one thing, and that was about appellant phoning the prose-cutrix that evening and before the commission of the offense at night, and appellant said, “Well, if that is all, there ain’t much in that.” Thereupon they discussed the matter for a while as to what time it was. Appellant said it was in the summer time. Witness said it was in the spring. And defendant “came to the position” that it was in the spring, and then he said: “That won’t be much. That don’t amount to much.” And after a while he said, “Yes, that is some evidence.” This was about the phone conversation that the witness mentioned at the time that appellant wanted to know whether pros-ecutrix had gone home. The grounds of objection stated are as follows: Because proper predicate had not been laid, and was not in rebuttal of any testimony brought out by defendant, and calculated to injure the rights of the defendant, etc. This testimony was admissible for several reasons. It was appellant’s view of the matter about which Davis had testified with regard to appellant calling' the girl over the telephone at Davis’ place. It was an admission on his part that he was the party at the other end of the line talking with the girl, and showed knowledge of a participation in the conversation with the girl, and was corroborative of the girl’s testimony for what it was worth. The court qualifies this bill by stating this testimony was in rebuttal of defendant’s testimony, and after he had testified that prosecutrix consented to this and many other acts of intercourse, and had proved by other witnesses acts of intercourse with her. The testimony, as shown by this bill above, as to the general reputation of prosecutrix, and as to the conversation between Davis and appellant, was properly admitted.

7. Bill No. 11 was reserved to some statements and matters occurring in the presence of the Syrian women at the ice cream parlor owned by them, at the time testified by Thompson and Gullick. It is unnecessary to repeat the contents of the bill of exception. For the reasons stated in regard to the previous bills, this testimony was admissible.

8. Bill No. 12 recites that the prosecutrix was permitted to testify that appellant was in the room talking to her brother-in-law, when Earnest Johnson and she left the gallery going walking. Earnest and prosecutrix were on the front porch, and appellant and her brother-in-law were in the room, just a wall between them, and the door was open, and her sister was in the next room to the front room in which appellant was. Prosecutrix went in where her sister was and spoke to her in a loud tone while she was in the room with her sister. She said she spoke loud enough for defendant in the other room to have heard it, and told her sister that she was going walking awhile, etc. This was objected to because hearsay, irrelevant, and immaterial, because the state had not shown that the defendant heard the conversation, or was close enough to hear it. These objections were overruled. The grounds of objection cannot be treated as matters of fact. If, as a matter of fact, appellant was in such position he heard this conversation, it was admissible. We are of opinion that, in view of the condition of the bill of exceptions, the defendant is shown to have heard it. The brother-in-law sitting with appellant heard the prosecutrix’s statement. Earnest Johnson and prosecutrix immediately left for the stroll, and appellant left a few minutes afterward, and after they had passed the hospital and- approached the woods, appellant confronted them and ran Johnson away, took the girl down in the woods, and, under her testimony, by force and threats and the use of a pistol, etc., had intercourse with her. We are of opinion that, as the bill is presented, the court was not in error in admitting this testimony.

9. A statement of facts accompanies the record, in regard to a statement in the motion for a new trial, that appellant was placed in jail during the noon hour pending argument in the case; that he was under bond; that this was a deprivation of his rights; that the officer bad no right to arrest him and put him in jail. This statement of facts was not filed until December 12th, the court having adjourned on the 14th of the previous October. Under the decisions this evidence cannot be considered. Appellant did not embody this in a bill of exceptions; simply embodied it in a statement of facts.

10. Appellant insists that the evidence is not sufficient to justify the verdict. The jury saw proper to believe the testimony of the prosecutrix. Her testimony makes out a clear ease, and she is corroborated by quite a number of witnesses and attendant facts which amply support the verdict of the jury. His testimony is that he found Johnson and the girl in the woods; that Johnson had pulled off his coat and spread it down, and the girl was sitting on the coat, conveying the idea that they intended to have sexual intercourse; and that she made Johnson leave when appellant came upon the scene, and he testified they there had intercourse, and it was by her consent. He testified also to having had intercourse with her previously, all of which she denied. The testimony in regard to these matters is quite voluminous, but if the state’s evidence is to be credited, appellant was guilty, as found by the jury, of having ravished the girl by both force and threats, or by threats and force conjointly.

Believing there has been no such error committed in the trial of the ease as would justify a reversal of the judgment, it is ordered that it be affirmed.  