
    HALL v. STATE.
    (No. 9099.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Criminal law ©=>368(1) — 'What was said and done by those present at time of assault held admissible in evidence as res gestm.
    In prosecution for aggravated assault, testimony of what was said and done by companions of principals to affray closely related to acts and conduct of participants helé admissible as res gestae, and not objectionable as hearsay.
    2. Witnesses ©=>363(1) — Exclusion of .testimony, showing intimate relations between pros’e-cutrix and state’s witness, held error.
    In prosecution for aggravated assault in which only one witness corroborated prosecu-tz'ix, and all other eyewitnesses corroborated story of accused, excluding testimony that some time prior to trial prosecutrix had licentious relations with such witness, was error, such testimony being admissible as showing animus’ or prejudice on his part.
    3. Witnesses ©=>363( I) — Animus, motive, or ill will of prosecuting witness, testifying to facts hurtful to accused, is never collateral or irrelevant inquiry.
    Animus, motive, or ill will of prosecuting witness, who testifies to facts hurtful to accused, is never collateral or irrelevant inquiry,- and acqused may show by such witness or by himself, or by others if necessary, why witness became unfriendly to him.
    4. Witnesses ©=>374(1) — Excluding evidence, that state’s witness gave prosecutrix bad check to pay hotel bill, held error.
    In prosecution for aggravated assault, where several eyewitnesses agreed with accused’s version of affair, and one only corroborated prose-cutrix, excluding testimony that such witness had given prosecutrix bad check to pay hotel bill was error, such testimony going to interest of witness.’
    5. Assault and battery <§=>85 — Exclusion .of testimony, as to disease for which prosecutrix was treated, held not error. •
    In prosecution for aggravated assault, excluding testimony of physicians that they treated prosecutrix some time prior thereto for pus tubes, which were caused by gonorrhea, was not error.
    6. Assault and battery ©=>85 — Excluding testimony, that prosecutrix, prior to incident complained of, had been drunk, held not error.
    In prosecution for aggravated assault, excluding testimony, that prosecutrix, some time prior to offense complained of, had been drunk, was not error.
    7. Criminal law ©=>683(1) — Exclusion from evidence of letter tending to controvert theory of state that accused’s witness disliked prose-cutrix held error.
    In prosecution for aggravated assault, where state’s theory was that accused’s witness was unfriendly toward prosecutrix, and state offered evidence to such effect, excluding from evidence letter between prosecutrix and such witness, offered on behalf of accused to show that witness did not dislike prosecutrix, was error.
    8. Criminal law ©=>719(1)— Remark of prosecuting attorney, to effect' that prosecutrix’s father was missionary, held improper and prejudicial. ,
    In prosecution for aggravated assault in which accused testified that at first prosecutrix refused to drink whisky, and that when another had asked her “Won’t you drink for your daddy?” she had drunk some whisky, comment of special prosecutor to accused that she would not drink until appealed to in name of her father, and remarking aside “Who was a missionary and you know it,” was irrelevant, improper, and may- have been highly prejudicial.
    9. Criminal- law ©=>719(1) — Prosecuting attorneys not permitted to supply testimony, unless they are sworn and take witness stand.
    Prosecuting attorneys will not be permitted to supply testimony, unless they are sworn and take witness stand.
    ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioner’s Decision.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    
    Elmon Hall was convicted of aggravated •assault, and he appeals.
    Reversed and remanded.
    Ben L. Cox and Dallas Scarborough, both of Abilene, for appellant.'
    Tom Garrard, State’s Atty., and Grover C. Morris,, Asst. State’s Atty., both of Austin, -for the State.
   BERRY, J.

The appellant was convicted in the district court of Taylor county for the offense of an aggravated assault, and his punishment assessed at a fine of $500 and confinement in the county jail for one year.

Stated in very brief form, the facts show that, on the evening of duly 21, 1924, the appellant and six others went out on a party to a pasture near the town of Abilene; in this party, in addition to the appellant, were Earl. Darden, a barber living in the town óf Ábilene who was a married man with a wife and two children, Joe Toten, Ruth Sfnith, the prosecutrix, one Sneed, a boy 20 years of age, Ruby Murrah, and Clora Wilson. The record discloses that the Wilson girl was about 18 years of age, and the Murrah girl was about 17 years of age. The prosecutrix was a young woman 23 years of age, who had been twice married, and was separated from each of her husbands. The participants in this ■ party carried with them two pints of whisky, some sandwiches, mints, and other paraphernalia. The prosecutrix testified that practically all of the parties drank of the whisky except her, and it was the appellant’s contention that the entire party except Sneed including the prosecutrix were partakers of this beverage. The prosecutrix testified that when they went out in the pasture where they stopped for lunch that the appellant assaulted her and forcibly attempted to have intercourse with her, and that Joe Toten assisted him' in this unlawful enterprise. The appellant claimed that Earl Darden and Toten and appellant became engaged in a fight, and that as a result thereof the prosecutrix and the Wilson girl also engaged in a fistic and hair pulling encoun-. ter. The appellant denied mating any assault whatever on the prosecutrix, and accounted for the bruises found on her person by showing that she and the Wilson girl had twice engaged in a fight on that night. He also presented the theory that prosecu-trix was infatuated with the married man Darden, and that on account of the difficulty betwen Darden, Toten, and others, the prosecutrix sought to vent her spleen against him and the other parties who had engaged her friend Darden in the fight. All of the parties who were eyewitnesses to> the transaction corroborated the appellant’s theory of the case, except the witness Darden who testified substantially as did the prosecutrix.

Many complaints are made by appellant with reference to matters of procedure in the case; the first two of which relate to the court’s action in refusing to change the venue in the case, and in failing to grant appellant’s first application for a continuance. As these matters may not arise in the same form in the event of another trial, a discussion of them is not deemed necessary.

Various bills of exception are contained in the record complaining at the court’s action in permitting the state to prove what was said and done by the Wilson and Hur-rah girls at the time and place where the assault is alleged to have been made. Appellant contends that this testimony was not admissible, because no conspiracy had been shown between the girls, and this defendant, and this defendant was not bound by any act of these witnesses and that same was hearsay and highly prejudicial. We think this testimony was admissible as a part of the res gestae. It was so closely related to the acts and conduct of the participants in the affair as to make it apparent to us that it was the transaction itself speaking through these parties. Appellant complains at the court’s action in refusing to permit him to prove by the witness Earl Darden, while on cross-examination, that he gave the hotel in Abilene a bad cheek for the purpose of paying the prosecutrix’s hotel bill.

Complaint is also made at the court’s action in refusing to permit the appellant to prove by the witness Miller and the witness Gaurke that, about six weeks prior to the time of the trial, on the Clear fork of the Brazos river, about 14 miles north of Abilene, that they saw the prosecutrix and the witness Earl Darden in swimming together, and that the prosecutrix had her legs up around his body several times, and that she had her arms around his neck hanging on to him, and that there was a log in the water under a big tree, and that they were on top of it face to face several times.

There are various: other bills of exceptions in the record presenting these matters in slightly different form, and it is the appellant’s contention that the testimony showing intimate relations between the proseen-trix, Ruth Smith, and the witness Earl Dar-den was admissible for the purpose of showing the animus and interest of the witness Darden in the case. As stated above, the witness Darden testified to substantially the same facts as those deposed to by the prose-cutrix. The testimony in the case was sharply conflicting and the overwhelming number of witnesses testified to a theory of the case favorable to the appellant. The testimony of the prosecutrix was corroborated alone by that of the witness Darden. It seems that the court refused to permit testimony on these transactions on the theory that they ■ were isolated transactions, and therefore an improper method of attacking the witness Darden. We cannot agree with the view of this matter taken by the trial court. It has been often held by this court, and by other courts, that the motives which operate upon the mind of a witness when he testifies are never regarded as irrelevant or collateral matters. It has also been held that the defendant is entitled to show animus or prejudice on the part of the state’s witness toward him and its extent, and in such examinations great latitude is allowed when the object is to impeach the credit of such witness. It is also well settled in this state that the animus, motive, or ill will of a prosecuting witness, who testifies to facts hurtful to' defendant, is never a c.ollateral or irrelevant inquiry, and the defendant may show by such witness, or by himself, or by others, if necessary, why the witness became unfriendly with him. Section 163, Branch’s Ann. P. O.

If the conduct described by the proffered witnesses, which, is alleged to have transpired in the water a short time before this offense is alleged to have been committed, actually occurred, then we think it was strongly indicative of a relationship between the prosecutrix and the witness Darden which to say the least was entirely unconventional. In fact, we think no other conclusion can be reached, considering all the circumstances surrounding these parties, than that if they engaged in the conduct described by the witnesses Miller and Gaurke, that their conduct was bordering dangerously close to the licentious. This being true, we think the jury was entitled to have this conduct placed before them in order that it might determine for itself from all the facts whether it believed that under the circumstances the witness Darden, because of this relationship toward the prosecutrix, would be willing to' “sell the truth to serve the hour” in her be¿half.

As to the testimony concerning the giving of a bad check to pay her hotel hill, it occurs to us that this would be a strong circumstance tending to show that the witness Darden’s relations toward the prosecutrix were such as to lead the jury to believe that he was not a disinterested witness. We think that practically the identical question was decided in accordance with the views we here express in the case of Crist v. State, 21 Tex. App. 366, 17 S. W. 260; Sexton v. State, 48 Tex. Cr. R. 498, 88 S. W. 348. See, also, Magruder v. State, 35 Tex. Cr. R. 219, 33 S. W. 233.

Appellant also complains because the court refused to permit him to prove by Dr. Cash and Dr. Estes that in January, 1924, they had operated ‘ on the prosecutrix for pus tubes, and that these pus tubes were always caused by gonorrhea; and because the court refused to permit him to prove by these physicians that the prosecutrix had had gonorrhea at some time. We fail to see any connection between the testimony offered and the case on trial, and we think the court was not in error in excluding this testimony.

We also think the court correctly refused to permit the appellant to prove by the witness Pickard that, in September, 1923, he was called to the home of Ruth Smith and found her in a drunken condition that was caused from having drunk intoxicating liquor to an excess. This testimony had no connection in any manner with the matter under investigation, and in our opinion was properly excluded.

Complaint is also made at the court’s action in refusing to permit the appellant to introduce in evidence a letter written by prosecutrix to Harry Althaver. The witness Althaver testified for the appellant, and was severely cross-examined by the state, and the state had offered in evidence several letters and telegrams that had passed between the prosecutrix, Ruth Smith, and Althaver, whereupon the defendant offered in evidence, a letter from the prosecutrix to Althaver for the purpose of showing the relationship between prosecutrix and Althaver, and for the purpose of showing that between said parties the best of feeling existed. We have eare^ fully considered this letter, and think it should have been admitted in evidence. The state’s theory was that the witness Althaver was very unfriendly toward the prosecutrix and offered evidence to this effect. The excluded letter would have tended to controvert this theory of the state, and would have been cogent testimony to the effect that instead of being unfriendly toward the prose-cutrix that the relations between them were exceedingly cordial.-

By proper bill of exceptions, appellant complains that while the defendant was on the stand he testified that at first Ruth -Smith refused to drink of the whisky that the party had, -and that then Earl Darden said to her, “Won’t you drink for your daddy?” referring to himself, Earl Darden, and that she did then taka a drink for Earl Darden. . That after the appellant had testified to the above, the special prosecutor, who 1 crossTexamined the defendant, said, “You stated at first the Smith girl absolutely refused to take a drink,” to which the defendant answered, “Yes, sir“Until you appealed to her in the name of her father?’ to which the witness answered, “No, sir;” and then the bill of exceptions shows that then the special prosecutor without any excuse made the following side bar remark, “Who was a missionary and you know it?” The bill further shows that the defendant objected to this remark and asked the court to exclude it from the jury and the court refused to do so. We think it. clear that this remark was clearly improper, and may have been highly prejudicial.

It is a well-settled rule in this state that prosecuting attorneys will not be permitted to supply testimony, unless they are sworn and take the witness stand. Even if the prosecuting attorney had been testifying as a witness, we think it dear that this testimony as to the prosecutrix’s father having 'been a^ missionary was entirely irrelevant, and could serve no purpose in the case except to possibly inflame the mind of some juror against the - appellant.

There are various bills of exception urged to the remarks of the prosecuting attorney in presenting the oase to the jury. Some of these we view as being rather serious, but as they will probably not occur on another trial of the. case, a discussion of them is deemed unnecessary.

For the errors above discussed, it is our opinion that the judgment should be revers>ed, and the cause remanded.

PER CURIAM.

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.  