
    MONROE v. STATE.
    (No. 9962.)
    (Court of Criminal Appeals of Texas.
    June 16, 1926.
    Rehearing Granted Dec. 22, 1926.)
    1. Witnesses <&wkey;405(I) — Testimony held properly rejected as attempt to impeach prosecu-trix on immaterial and collateral matter brought out on her cross-examination.
    Prosecutrix on cross-examination having testified in response to defendant’s questions to intercourse with .him prior to that testified to , by her on the direct, and relied on for conviction, and that on such occasion another was present, testimony of the other that she was not present on any such occasion was properly rejected as an attempt to impeach prosecutrix on an immaterial and collateral matter brought out by defendant on cross-examination.
    2. Rape <&wkey;40(4)— Evidence of prior intercourse of prosecutrix with another than defendant in statutory rape held inadmissible.
    Under facts of statutory rape case, evidence of prior intercourse of prosecutrix with another than defendant held inadmissible.
    On Motion for Rehearing.
    3. Witnesses &wkey;>379(2), 406 — That prosecutrix had said defendant had not had intercourse with her held admissible to impeach her and contradict her testimony.
    Evidence that prosecutrix in rape had told witness that-defendant had not had intercourse with her was admissible, not only to impeach her, but to. contradict her testimony.
    4. Criminal law <&wkey;939(3) — Diligence held not lacking preventing new trial for newly discovered evidence, though witness was in court and not interviewed.
    Though witness was in court at first trial and was not interviewed, yet, she'having been summoned to meet surprise testimony, and counsel having been informed by court that her testimony would not be received because it was an attempt to improperly impeach prosecutrix, there was no lack of diligence preventing new trial for newly discovered evidence, consisting of testimony of such witness as to another fact, of her acquaintance with which counsel had no information.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    I-I. B. Monroe was convicted of rape, and be appeals.
    Reversed and remanded.
    Stinson, Coombes & Brooks, of Abilene, and Jas. A. Stephens, of Benjamin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe State.
   LATTIMORE, J.

Conviction in district court of Knox county of rape; punishment fixed at five years in tbe penitentiary.

Prosecutrix swore to an act of intercourse with appellant at bis place of business on March 9th. She was not quite 15 years of age at the time. She said a Mrs. Burroughs was present, and that at first she did not ■agree to have intercourse with appellant, and when be would turn the lights off in the building she would turn them on. The act occurred after 12 o’clock at night. The Burroughs woman corroborated prosecutrix. Elliott, a night watchman, said that his attention was attracted by hearing the talking of a man and one or two women in appellant’s place of business at a late hour of the night. The lights would be turned off and then on and off again. He tried the doors but found them locked. He watched and saw appellant, the Burroughs woman, and prosecutrix come out. It was about 1:20 a. m. A Mr. Moore was with Elliott and told substantially the same story.

Appellant took the witness stand in his own behalf-and admitted that the Burroughs woman and prosecutrix were at his place on the night mentioned from about 11:30 until after 1 o’clock. Mr. Elliott was called to the stand by tbe state in rebuttal, and testified that about 20 minutes after the parties came out of appellant’s place on ^aid night prosecu-trix told him that appellant had intercourse with her.

There are four bills of exception. The first asserts error in the refusal of the trial court to allow appellant to prove by a Mrs. Henderson that she was not present, at any time in February preceding tbe March mentioned, at appellant’s place of business when, he took prosecutrix into a side room and had intercourse with her. This testimony was-properly rejected. The state had proved by prosecutrix only the act of March 9th, on-which it relied for a conviction. In appellant’s cross-examination he asked prosecutrix if she had any other connection with him at any other time, and she said she had, and detailed, in response to appellant’s questions, the surroundings and settings of an act which she said took place in February. She said that Mrs. Henderson was picking turkeys at appellant’s place when he took prosecutrix into a side room and had intercourse with her in February. The attempted impeachment by Mrs. Henderson was on an immaterial and collateral matter which had been brought out by appellant himself on cross-examination. Drake v. State, 29 Tex. App. 270, 15 S. W. 725; Wilson v. State, 37 Tex. Cr. R. 69, 38 S. W. 610; Brittain v. State, 47 Tex. Cr. R. 602, 85 S. W. 278. See, also, authorities cited in section 165, Branch’s Annotated P. C.

Bill of exceptions No. 2 was reserved to argument of state’s attorney, which, without setting it out, seems entirely within the record and not improper. Bill of exceptions No. 3 was taken to the rejection of testimony showing that prior to her alleged act of intercourse with appellant, prosecutrix had intercourse with another person. The charge here is rape by consent. In a case like the one before us this testimony would be inadmissible. Knowles v. State, 44 Tex. Cr. R. 325, 72 S. W. 398; Whitehead v. State, 61 Tex. Cr. R. 567, 137 S. W. 356.

The fourth bill of exceptions presents complaint of the refusal of appellant’s motion for new trial based on the proposition of newly discovered testimony. The testimony of Mrs. Henderson was not newly discovered. She was present at court and was not interviewed. Acton v. State, 104 Tex. Cr. R. 75, 282 S. W. 805; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322. The affidavits of other witnesses whose testimony was claimed to be newly discovered were attached to the motion, and showed that the new testimony was pertinent only for impeachment purposes. None of the same would have been admissible as original testimony. The state traversed the motion, and the coprt heard testimony. We think the action of the court in refusing the motion in accord with the authorities, Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Holt v. State, 39 Tex. Cr. R. 282, 45 S. W. 1016, 46 S. W. 829; Morris v. State. 57 Tex. Cr. R. 163, 121 S. W. 1112; also authorities cited in Branch’s Annotated P. C. § 202. Cottrell v. State, 91 Tex. Cr. R. 131, 237 S. W. 928, was relied on by appellant, and also Lusty v. State, 97 Tex. Cr. R. 167, 261 S. W. 775. An inspection of the record shows that in this case the state did not rely alone on the testimony of prosecutrix, nor was there any'evidence introduced as to a physical examination made of her. She was 'abundantly corroborated, and the question of the sufficiency thereof was wholly for the jury. In this connection we also note that the lowest penalty was given the appellant.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Concerning the bill of exceptions which relates to the refusal of a new trial upon the ground of newly discovered evidence, we make the following statement in addition to those contained in the original opinion in this case:

According to the affidavit of one of the attorneys for the appellant, he interviewed the prosecutrix before she gave her testimony, and was told by her that there had been but one act of intercourse between her and the appellant. When testifying as a witness, she related that an act of intercourse had taken place between her and' the appellant in the presence of Mrs. Burroughs on March 9th, as stated in the original opinion. On cross-examination, she was asked if it was not a fact that, save in the one instance to which she had given testimony in the direct examination, appellant had never mistreated her, to which she replied that the appellant had intercourse with her in February preceding the act which she described in the direct examination, and further stated that this previous act took place at the home of the appellant; that Mrs. Winnie Henderson was present at the time when appellant took the prosecutrix into an adjoining room and had intercourse with'her. Appellant’s counsel declared that he was surprised at this testimony, that it was untrue, and asked for a subpoena for Mrs. Henderson in order that he might controvert the testimony last mentioned. When Mrs. Henderson arrived in obedience to the subpoena, counsel was informed by the court that her contradiction of the prosecutrix would not be received for the reason that her testimony related to a statement made by the prosecutrix on cross-examination by which the appellant was bound. To this ruling the appellant objected and presented a bill of exceptions, which is found in the record, complaining of the exclusion of her testimony. This bill was approved and is referred to in the bill of exceptions under discussion. In view of the announcement made by the court, the’ appellant’s counsel did not talk to Mrs. Henderson and had no antecedent knowledge or information that she was acquainted with any fact material to the case. He had n'o opportunity to talk to her during the trial, and no occasion to do so, as the court had announced his unwillingness to receive the only testimony of which counsel or the appellant were aware they could obtain from Mrs. Heqderson. After the trial, counsel learned that Mrs. Henderson would testify to another fact, and obtained from her an affidavit, which he attached to his motion for a new trial. In the affidavit the witness, in addition to the testimony mentioned which the court declared that he would exclude, stated the following:

“Affiant further says that one day last week she (witness) had a conversation with the said Allie Brownfield; that she ashed the said Allie Brownfield why she was telling around town that defendant had had intercourse with her (affiant’s) daughter; that she hnew it was not true; that the said Allie Brownfield told affiant that she knew it was not true that he had had intercourse with affiant’s daughter, and further stated that he had never had intercourse with iher the said Allie Brownfield; that after the trial or after the jury was out on the trial of this cause she told defendant and his attorney about this conversation; that she never had a chance to tell either of them before the argument was closed on the trial of this case; and that they were not aware of said fact.”

In his motion for a new trial, appellant also embraced the affidavit of Mrs. P. E. Bes-sire to the effect that she heard the prosecu-trix tell Mrs. Winnie Henderson that the appellant had never had carnal knowledge of her; that the prosecutrix made the same statement to the witness.

In the motion there was also presented the affidavit of Mrs. Brownfield, mother of the prosecutrix, in which she declared that her daughter (the prosecutrix) had said to the witness that the accusation that was made against the appellant was untrue; that she was frightened into making the accusation. The affidavits of counsel and the appellant are to the effect that they had no knowledge of either of these matters prior to or during the trial; that Mrs. Bessire was not a witness ; that they had no information of any fact which would lead them to the knowledge that she could give the testimony embraced in her affidavit mentioned, or that Mrs. Brownfield'could.

The materiality of the testimony of Mrs. Henderson embraced in the part of the affidavit to which we have adverted, namely, that 'the prosecutrix had told the witness that the appellant had never had any intercourse with her, we think, cannot be called in question. It was effective, not. only to impeach the prosecutrix, but to contradict her' testimony touching the main fact upon which the prosecution relied. The same may be said of the testimony of Mrs. Bessire. The admissibility of testimony of the same nature was reviewed in the case of Lusty v. State, 97 Tex. Cr. R. 167, 261 S. W. 776. In holding it admissible, the court cited several precedents which are deemed pertinent. Among them are Foreman v. State, 61 Tex. Cr. R. 56, 134 S. W. 229; Tull v. State (Tex. Cr. App.) 55 S. W. 61.

We have failed to perceive any lack of diligence so far as Mrs. Bessire was concerned, and, upon reflection, it is believed that under the facts which are before this court in bill of exceptions No. 4, in the light of the record, appellant should not be charged with a lack of diligence with reference to the testimony mentioned which is embraced in the part of the affidavit of Mrs. Henderson quoted above. The rule of diligence, applied to newly discovered evidence, is not believed to be so rigid as to deprive the accused in the present instance of the testimony in question. The precedents upon the subject are cited in the case of Anderson v. State, 93 Tex. Cr. R. 635, 248 S. W. 681, and, in our judgment, justify the conclusion that the appellant brings himself within the exception to the rule, as was done in the Anderson Case, supra, and others cited therein.

Concerning another bill of exceptions, it is believed by the writer that under the facts-appearing in the record, the appellant, by his cross-examination of the prosecutrix, was precluded from contradicting her touching the statement of a previous act of intercourse. According to the sworn statement of counsell embraced in the bill, the answer of the pros-ecutrix to the effect mentioned was a sur-, prise, she having previously declared in the interview with her that no such occurrence had taken place. The answer which she gave, namely, that there had been a previous act of intercourse, if not controverted, might form a predicate for a conviction. On reflection, it is the opinion of this court, in the light of the record, that the learned trial judge was not justified in overruling the motion for a new trial based upon items of newly discovered evidence to which reference has-been made.

For the reasons stated, the motion for rehearing is granted, the order of affirmance is set aside, the judgment of convictión is reversed, and the cause remanded. 
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