
    THOMAS v. STATE.
    (No. 10964.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    Rehearing Denied Nov. 16, 1927.
    1. Criminal law &wkey;>814(17) — Where state relies for conviction upon confession of defendant admitting truth of main facts, court need not charge on circumstantial evidence.
    Where state relies for conviction upon confession of defendant, which confession admits truth of main facts, no error is committed on refusal to charge on circumstantial evidence.
    2. Rape <&wkey;59( 19) — Refusing charge on assault with intent to rape and aggravated1 assault held-not error where accused had admitted penetration.
    In rape prosecution, where defendant in a confession had! admitted that he accomplished act of penetration, refusal to charge on law as to assault with intent to rape and aggravated rape held not error.
    3. Criminal law <&wkey;l 144(12) — In absence of showing in bill negativing idea that evidence, admitted as res gestae, was res gestee, it will be presumed that ruling was correct.
    In absence of some showing in bill negativing idea that evidence admitted was res gestee, appellate court will presume that ruling of trial court that it was res gestee was correct.
    4. Criminal law <&wkey;534(l) — !f prosecutrix was bleeding continuously from private parts subsequent to alleged rape on same d'ay, evidence thereof was admissible as corroborating confession.
    If prosecutrix was bleeding continuously from her private parts subsequent to alleged rape and on same day, it was permissible to prove that fact as corroborating accused’s concession wherein he admitted that he penetrated private parts of prosecutrix.
    5. Criminal law <&wkey;479 — Admitting testimony of family physician that prosecutrix was of unsound mind held not error, in view of his qualifications.
    In rape prosecution, permitting doctor to testify that he had known prosecutrix practically all her life, that he was family physician, had had conversations with prosecutrix, had heard her talk some, had observed expression of her face and expression of her eyes, etc., and that it was his opinion that prosecutrix was of unsound mind held not error; doctor being well qualified to testify as an expert.
    6. Criminal law <&wkey;479 — Permitting physicians to testify that prosecutrix had intelligence of 8 year old child held not error.
    In rape prosecution, permitting physicians to testify as to soundness of mind of prosecu-trix and that she had mind or intelligence of an 8 year old child held not error;- they having qualified as experts.
    On Motion for Rehearing.
    7. Criminal law <&wkey;535(2) — In rape prosecution, where defendant had confessed to act, evidence held sufficient to establish corpus de-licti.
    In prosecution for rape, where defendant had signed written confession admitting act, evidence held sufficient to establish corpus de-licti.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Matthew Thomas was convicted of rape, and he appeals.
    Affiymed.
    N. P. Spring and Audley Harris, both of Austin, for appellant.
    8am D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, and the Assistant Attorney General, for the State.
   BETHEA, J.

Appellant was convicted in the district court of Travis county on a change of venue from Lee county for the offense of rape upon one Minnie Carlo, and his punishment assessed at 99 years in the penitentiary. This is the third appeal of this case. The first two appeals will be found in 98 Tex. Cr. R. 428, 266 S. W. 147, and 102 Tex. Cr. R. 575, 279 S. W. 278.

Appellant complains of the action of the learned trial judge in overruling his motion to quash the indictment. We are not in accord with this contention. The indictment follows the form laid down in Branch’s Penal Code, ^ 1764, p. 990, and has been upheld by numerous decisions of this court.

Appellant brings forward thyee special charges which were refused by the learned trial judge. These charges are requests for instructed verdict. The facts are amply sufficient to justify the court in refusing to give said changes and in submitting the issues of fact to the jury. The remaining three, spe* eial charges, requested by the appellant, .were given by the court.

Appellant excepted to the refusal of the court to submit the case on circumstantial evidence. The state introduced in evidence a complete confession, made and signed by appellant, in which he admitted having carnal intercourse with the prosecutrix. This confession showed penetration. Wheye the state relies for a conviction upon the confession of the appellant, which confession admits the truth of the main facts, no error is committed in refusing to charge on circumstantial evidence.

Appellant also excepted to the failure of the learned trial judge to charge upon the law as to assault with intent to rape and aggravated assault. As we view the facts, these issues were not presented; the appellant having admitted that he accomplished the act of penetration.

Appellant, in his bill of exception No. S, complains of the admission of the testimony of Mrs. L. G. King, who testified, in substance, that when she arrived at the home of Minnie Carlo about 2 o’clock in the afternoon of the day the alleged offense was committed she found Minnie Carlo, the prosecutrix, bleeding from her private parts; that the blood was flowing, and that she applied cold water to prosecutrix’s private parts in an effort to stop the flow of blood; that she continued this treatment until Dr. Wood arrived about 4 o’clock the same afternoon; that she examined prosecutrix’s clothes and found a great deal of blood and blood stains upon them. This testimony was objected to by appellant for the reason that it was charged, and the state contended, that the alleged rape occuryed at 11 o’clock in the morning ; that there was no evidence that the injured party, Minnie Carlo, was in the same condition at 11 o’clock that the evidence showed she was found in at 2 o’clock; that it was not a part of the res gestee for the reason that it was too remote, whether in point of time or from the scene of the alleged offense; that the examination of the person was not made in the presence of the appellant, but in his absence, and was self-serving on the payt of the alleged injured party. The court does not certify when the alleged offense was committed, and this is merely the grounds of appellant’s objection without any certificate on the part of the court that the grounds were correct. The objection is that the alleged rape occurred at 11 o’clock in the morning, and that the bloody clothing and the bloody parts of prosecutrix were disclosed at 2 o’clock, and this testimony was not admissible as a part of the res gestee. There is no certificate on the part of the trial court that the grounds of objection stated in the bill were correct, and no facts are certified to by the learned trial judge upon Which this court can determine whether or not the testimony complained of was res gestee, and, in the absence of some showing in the bill negativing the idea that it is res gestee, it will be presumed that the ruling of the trial court was correct and that it was res gestee. However, we are of the opinion that if the prosecutrix was bleeding, continuously from her private parts subsequent to the alleged yape and on the same day, it was permissible to prove that fact as tending strongly to corroborate the confession of the appellant wherein he admitted that he penetrated the private parts of prosecutrix.

What we have said in our disposition of bill of exception No. 3 disposes of bills of exception Nos. 4 and 6.

Appellant complains in his bill of exception No. 5 that Dr. W. E. Wood was permitted to testify that he had known Minnie Garlo practically all hey life; that he was the family physician, had had one or two conversations with prosecutrix, had heard her talk some, and had observed the expression of her face and the expression of her eyes; that she was paralyzed on her right side from hey head to her foot; that she presented a blank look out of her eyes; that from her conversation, the look in her eyes and face, it was his opinion that prosecutrix, Minnie Carlo, wás of unsound mind. Objection to this testimony was that the witness was testifying as a layman and not as an expert; that his opportunities to observe the said Minnie Carlo were.insufficient to qualify him to express an opinion as to the soundness or unsoundness of her mind, and was calculated to mislead the jury, and was pyejudicial to the appellant; that the facts detailed by witness were not sufficient predicate to sustain the questions and answers; that it was not shown that appellant had had the same opportunities of observation as the witness or that he had had any- opportunities to hear any conversation of Minnie Carlo, and to observe the expressions of her eyes and face. It will be observed from an examination of this bill that the court failed to ceytify that the witness was testifying as a layman instead of as an expert. The court did not err in admitting this testimony, the doctor being well qualified to testify as an expert.

Bill of exception No. 7 complains of the argument of the prosecuting attorney, Merton L. Harris. We have read the argument, and, in the light of the testimony of the witness Dr. Joe Wooten, whose evidence the prosecuting attorney was discussing at the time he made the argument complained of, we are of the opinion that the argument was nothing more nor less than a logical and proper deduction from the evidence and was clearly within the record. The court did not err in refusing to instruct the attorney to desist from making said argument.

By bills of exception Nos. 8, 9, and 10, appellant complains because of the testimony of the state’s witnesses Dr. Joe S. Wooten, Dr. W. W. Greer, and Dr. Sam Haigler, who, as experts, testified as to the soundness or unsoundness of the mind of the prosecutrix, and that she had the mind or intelligence of an 8 year old child. The court certifies in his qualification to each of said bills that the witnesses did not testify as complained of in the bill. However, it is our opinion that the court committed no e¡rror in permitting them to testify, they having qualified as experts.

Bills of exception Nos. 11 and 12 complain of the argument of prosecuting attorney. Both of these bills are qualified by the learned trial judge, in which qualifications he certifies that the argument complained of in such bills was invited by appellant’s counsel. However, it is our opinion that said argument amounted to nothing more nor less than empty declamations, and it is immaterial whether they were invited or not. The argument was not of such a nature as to warrant this court in reversing ahd remanding this case for another trial.

There being nothing in the record pointing out any error, and the facts being sufficient to support the verdict, the judgment of the trial court is affirmed.

PER CURIÁM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Touching the rulings of the court on matters of evidence the announcements of this court in the opinion on the original hearing are deemed sound. A fu,rther 'discussion of the bills is deemed unnecessary.

Pointing to the case of Cokeley v. State, 87 Tex. Cr. R. 256, 220 S. W. 1099, appellant insists that in holding the evidence sufficient to establish the corpus delicti there was error committed. Erom the opinion in Cokeley’s Case we quote:

“It has been decided in recent years and seems now to be a fairly recognized rule that the confession máy be used to aid in proving the corpus delicti, subject, however, to the above statement that it cannot of itself prove the corpus delicti. Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Fredrickson v. State, 44 Tex. Cr. R. 288, 70 S. W. 754; Austin v. State, 51 Tex. Cr. R. 328, 101 S. W. 1162; 68 L. R. A. 70.”

Erom the opinion of this court rendered by Presiding Judge Hurt in the Kugadt Case, 38 Tex. Cr. R. 694, 44 S. W. 996, we take the following quotation:

“The general doctrine is that extrajudicial confessions, standing alone, are not sufficient proof of the corpus delicti; and some of -the cases hold that the corpus delicti must be proved independently of confessions. But we do not understand such to be the better doctrine. In other words, in the establishment of the corpus delicti the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence. See note 3 to case of State v. Williams, reported in 78 Am. Dec. 254., And this rule is recognized in this state. See Jackson v. State, 29 Tex. App. 458 [16 S. W. 247]. Said case quotes with approval an excerpt taken from 4 American and English Encyclopedia of Daw, 309, as follows: ‘A confession is sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant’s guilt in the minds of a jury beyond a reasonable doubt.’ ‘Such suppletory evidence need not be conclusive in its character. When a confession is made, and the ■ circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. “Pull proof of the body of the crime, the corpus de-licti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.” ’ 3 Am. and Eng. Enc. of Law, 447. We take it that there can be no question that the prosecution is permitted to prove by circumstantial evidence the corpus delicti, and in aid thereto use confession of the appellant.”

See, also, Aven v. State, 95 Tex. Cr. R. 155, 253 S. W. 521.

In the present case the record is not without evidence of facts and circumstances independent of the confession which was available to the jury to supplement the confession in proving the corpus delicti.

' The present case has heretofore been twice before this court. See Thomas v. State, 98 Tex. Cr. R. 428, 266 S. W. 147, and 102 Tex. Cr. R. 575, 279 S. W. 278. The subject of the offense was Minnie Oarlo, a woman 46 years of age, who had spent her life in the same community. Many witnesses testified on the issue of her mental condition. Some of them had known her fyom infancy. No doubt is entertained of the sufficiency of the evidence to warrant the jury’s finding that at the time of the offense she was so mentally diseased as to have no will to oppose the act of sexual intercourse in which confessedly the appellant had engaged with her.

The main issue upon the trial was knowledge on the part of the appellant of the mental deficiency of the woman mentioned. Upon that question the evidence adduced is quite sufficient to support the verdict. In his written confession the appellant related the fact that he was 28 years of age; that while out in the woods hauling wood he observed the woman who said she was there getting wood for her' aged mother, also that she was crippled and could not do much, and that hey mother was old and could not do anything. She exhibited her crippled arm. After a somewhat extended conversation, the appellant took hold of the arm which was not •paralyzed. At his request she laid down on the ground where he had sexual intercourse with her. The appellant was not a stranger in the vicinity, but had resided there for some time. Aside from the confession, there was evidence that the appellant had cut wood in the locality in which the offense was charged to have been committed; that he frequently went to the place near the Carlo home, where the assault was committed, foy the purpose of cutting wood. There was some testimony to the effect that the appellant and the woman were seen by others near the place and about the time of the alleged offense. The •evidence shows that on the day designated in the confession, after the occurrence therein •described, Minnie Carlo went to her home; that the neighbors were called by her'mother ; that the physical condition described by them, including her female organs and flow of blood, was such as to coincide with the appellant’s confession touching the act of intercourse. There were also tracks and footprints at the place where, according to the confession, the act took place which tended to support the declaration in the confession. There was evidence also excluding the theory that the flow of blood fyom the woman in question after the alleged occurrence was due to causes other than the sexual act. The statement of facts is long, and a recital of the details is impracticable. On the previous appeals the evidence of the corpus delicti was not held insufficient, and that phase of the • case, so far as we are' aware, was not pressed upon rehearing. In the examinations of the ■records heretofore made, this court has not been impressed with the view that the evidence was inadequate to establish the corpus delicti, and such is the opinion of the court at the present time. We have perceived nothing in the record warranting this court in again ordering a reversal of the judgment.

The motion for rehearing is overruled. 
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