
    TURNER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Criminal Law (§ 522)—Evidence—Con-fessions—Voluntary Character.
    Where prosecutrix testified to facts showing a rape by defendant, detailing all the circumstances, and defendant, before _ the state had attempted to show any confession and to support his contention that the case was a frame-up, and that the father of prosecutrix was trying to drive him from his land and out of the country, on cross-examination brought out that prosecutrix, in the presence of her father and mother, had accused him, and that her father then attacked and beat him until he confessed, testimony of the father and mother as to what was said and done at that time, objected to on the ground that defendant was under duress and did not voluntarily confess, was properly admitted.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1189-1195; Dec. Dig. § 522.]
    2. Criminal Law (§ 351)—Evidence—State-ments on Arrest.
    Where defendant, on an accusation of rape, fled the county, evidence of his giving of an assumed name to a police officer in plain clothes, who had not arrested him nor informed him that he was an officer, but who was determined not .to let him get away, and his statements as to where and for whom he worked, were admissible.
    [Ed Note.—For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.]
    
      3. Criminal Raw (§ 378) — Evidence—Character of Accused.
    Where defendant prayed a suspension of sentence and introduced evidence of his general reputation, there was no error in permitting the state to inquire into his habits and mode of life.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 842; Dec. Dig. § 378.]
    4. Rape (§ 6) — Elements of Offense — Eobce.
    Force is not an element of the offense of rape upon a girl under 16 years of age, since she is incapable of consent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 6; Dec. Disr. § 6.]
    6. Criminal Law (§ 789) — Instructions— Weight of Evidence — Reasonable Doubt.
    In a prosecution for rape, a charge submitting that offense and requiring the jury to believe the facts constituting it beyond a reasonable doubt before they could convict, and that, in case an acquittal of that offense, the question whether defendant was guilty of an assault with intent to rape should be considered, and requiring a finding of 'facts constituting that offense beyond a reasonable doubt, and submitting the law of aggravated assault as applicable to the evidence with the application of the rule of reasonable doubt to that offense, together with the usual charge on presumption of innocence and reasonable doubt, in .view of a conviction of the offense without mitigating circumstances, was not objectionable in not applying the rule of reasonable doubt to each specific offense mentioned in the charge.
    [Ed. Note-. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851,1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Frank Turner was convicted of rape, and lie 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 ladeares
    
   HARPER, J.

Appellant was prosecuted and -convicted of rape, and bis punishment assessed at five years’ confinement in the penitentiary.

Gusta Poe, a ten-year old girl, testified to facts showing that she had been raped by appellant, detailing all the circumstances. On cross-examination the appellant sought to show by this witness that her father was trying to make appellant leave the country, and all through the record an effort is made by appellant to show that the prosecution is a frame-up, instigated by the girl’s father to get appellant off his land and out of the country. The state at this time had not offered nor attempted to show that appellant had made any confession, but on cross-examination, of this witness the defendant elicited the following facts: That she had told her father about the matter, when her father went in the direction of where appellant was staying, and then, to use her own language: “The next time I saw Papa was late that evening, and Mr. Turner was with Papa at that time. Papa then told me to tell it right before Mr. Turner and Mamma, and I did. My papa and mamma and Mr. Turner and I were all there. I told them just what I have told here. Mr. Turner looked pretty bad that night. He was pretty badly beaten úp. 'My papa hit him while I was there near him. Papa would just hit him and say, ‘Now, don’t you see?’ Papa did that when I told him what I did there after Mr. Turner was present. Mr. Turner was bleeding a good deal at tha,t time. Bleeding in the face and blood ail over his face and eyes. My papa did not tell me that he was beating the old man up, but I saw Papa hit him. Mir. Turner never said anything, only Papa asked him if it was the truth, and Mr. Turner would not say anything, and Mamma says, ‘Say yes,’ and he said ‘Yes.’ Papa was ‘laying’ it onto him then. He was hitting him about that time. Turner begged Mamma to get Papa to quit beating him. Miy mamma did not try to get Papa to quit beating the old man. Mr. Turner said that Papa was going to kill him: Mamma did not try to get Papa to quit beating him up. Papa said he was going to kill the old man, and Mamma said she did not care if he did, and Papa picked up a stick and commenced beating him and beat him a good while before the old man acknowledged to doing what I said he did. Mamma then took the stick away from Papa and throwed it away. Papa beat him a good while before he owned up to it. He would not say ‘Yes’ at first. Turner did not say that he would confess to anything if Papa would not kill him. He said Papa was going to kill him, and that is all he said then. I then left my papa there in the road. Mamma and I went on, and Mr. Turner and Papa went back towards the bridge. Papa was not leading Turner and pushing him along as they went down towards the bridge.” This was the first witness placed on the stand, and none of this testimony was offered by the state, but elicited by defendant on cross-examination, and defendant was the one who injected this matter into the case. From the record it would appear he deliberately did so for the purpose of supporting his contention that the father of the girl was trying to force him off the land and make him leave the country, and that the charge of rape had been instigated by Gusta Poe’s father for the purpose of giving him an opportunity of beating him up and driving him out of the country, and the case was tried in fact on that issue as made by defendant. Under such circumstances we do not think there was any error in permitting Mr. and Mrs. Poe to testify in regard to what was said and done on that occasion.

Appellant objected to Mr. and Mrs. Poe and Edgar Holt testifying that appellant on that occasion admitted he committed the rape on the little girl, on the ground that he was under duress, and it was not voluntarily made. It is not contended he was under arrest, but that it was iorced from bim, and the confession was made to save his life. There would be strength and force in appellant’s contention if he had not been the first, in the cross-examination of Gusta Poe, to inject this matter into the case, but, when he had elicited the matter from her to build a theory on, that the charge was a frame-up of the'father to give him an opportunity to beat him and drive him o.ut of the country, then the transaction just as it occurred might be detailed by the other witnesses.

Appellant escaped that night, and it is shown he fled the county and was arrested in Waco, and when arrested he gave an assumed name. George Weathers, of the police force, testified: “I went to search for him (meaning defendant). I found the old man in the Cotton Belt bar on the corner of Third and Mary streets. I had a description of the old man, and I walked in by the bar and saw this man, and I called him out by the side of the house and asked him where he lived, and he said at Waco, and I asked him how long he had been living in Waco, and he said 25 years; and I says, ‘What part of Waco?’ and he said, ‘Just anywhere;’ and I says, ‘What do you do for a living?’ and he says, T work;’ and I says, “Who do you work for?’ and he said, T work out in the edge of the country and town;’ and I says, ‘What is the man’s name that you worked for?’ and he studied a little while and says, T can’t think of his name.’ ” The witness then said he had not yet arrested the defendant, but testified further as follows: “At the time I took him (meaning the defendant) out there I would not have let the defendant get away, if I could have helped it. That is what I had him for. And he says, ‘My name is not Turner.’ He had previously told me his name was John or Will Johnson, or something like that.” In approving the bill the court says: “I refer to Weather’s testimony in the statement of facts. He swore that, at the time he had the conversation with the defendant in question, he (Weathers) had on plain clothes and that he had not arrested the defendant and had not informed him that he was an officer.” As thus qualified there was no error in admitting the testimony under all of our decisions. Elsworth v. State, 54 Tex. Cr. R. 40, 111 S. W. 963; Grant v. State, 56 Tex. Cr. R. 415, 120 S. W. 481; Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 593; Martin v. State, 57 Tex. Cr. R. 264, 122 S. W. 558; and cases cited in section 221, Branch’s Crim. Law.

Appellant interposed a plea, praying for a suspension of sentence, and introduced evidence of his general reputation. Under such circumstances there was no error in permitting the state on this issue to inquire into his habits and mode of life, and the bills on this question present no error.

The rape in this instance was alleged te have been committed on a girl under 15 years: therefore there was no error in refusing the special charge requested presenting the issue that appellant could not be convicted unless “he used force upon her.” Force is not an issue in this character of ease; the girl being incapable of giving consent either to rape or an assault to rape. In an advance sheet of M(r. Branch’s new work, the Penal Gode of Texas, c. 8, we find the following rule correctly stated: “Carnal knowledge of a female under the age of consent and not the wife of the person having carnal knowledge of her is rape, no matter what the circumstances, and the question of consent or whether the carnal knowledge was had by force, threats, or fraud is wholly immaterial. Anschicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; Whitehead v. State, 61 Tex. Cr. R. 558, 137 S. W. 356; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476; Hightower v. State, 143 S. W. 1168; Vandenberg v. State, 148 S. W. 315. If the female is alleged to have been under the age of consent at the time defendant had carnal knowledge of her, an unnecessary allegation that defendant ‘did ravish,’ or that the carnal knowledge was ‘by force,’ or ‘by threats,’ or ‘by fraud,’ may be rejected as surplusage. Davis v. State, 42 Tex. 226; O’Rourke v. State, 8 Tex. App. 70; Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814; Buchanan v. State, 41 Tex. Cr. R. 128, 52 S. W. 769; Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375; Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94 [123 Am. St. Rep. 844]; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476.”

The only other exception to the charge is that the court erred “in not applying the rule of reasonable doubt to each specific offense mentioned in the charge. The court first submitted the offense of rape, and instructed the jury they must believe beyond a reasonable doubt the facts constituting this offense before they would be authorized to convict, and then following this paragraph instructed the jury: “If you should have a reasonable doubt of the defendant’s guilt of the offense of rape, you will acquit of said charge, and then consider further whether or not he is guilty of the offense of an assault with intent to rape”—and then instructs the jury fully on the law of assault to rape, and requires them to find such facts beyond a reasonable doubt before they would be authorized to convict. He then instructs the jury the law of aggravated assault as applicable to the evidence in this case, and applies the doctrine of reasonable doubt to that offense. In addition to all this, he then gave the usual and customary charge on presumption of innocence and reasonable doubt. Under such circumstances this complaint is without merit. The jury under these instructions find the appellant guilty of rape, and recommend that the punishment be not suspended, evidently finding the offense committed under circumstances showing no mitigation.

To our minds, the only serious question in the case is the question of admitting the statement made by defendant while he was being whipped by the outraged girl’s father. Had not the defendant first made this proof and injected the issue in the case, a very serious, if not fatal, question would be raised. However, having himself made this proof by the little girl and injected the issue in the case, and then the other witnesses allowed to detail their version, on the issue of whether of not Mr. Poe was using this charge as grounds for driving appellant from off his land and out of the country on account of his dislike for appellant, we have concluded that the court did not err in admitting the testimony, and the circumstances under which the statements were made by appellant would go to its weight and not its admissibility. If the appellant had requested a charge that if appellant had made the statements under duress (that is, to save himself from further castigation by an irate parent), then they would -not consider same as any evidence of appellant’s guilt of the crime of rape; or, had he complained of the charge of the court for not so instructing the jury, we would feel inclined to sustain his contention. But inasmuch as he did neither of these things, and first elicited evidence from the girl that her father had beaten and whipped appellant on that occasion, and that when appellant appealed to Mrs. IPoe to stop her husband, and, in answer to her remark in reply, he admitted his guilt, when Mrs. Poe caused her husband to cease, and brought this whipping into the case to build a defense that Poe was trying to run him off the land, which effort he continued throughout the case by the introduction of other and independent testimony, the court’s action in the premises presents no error.

The judgment is affirmed.  