
    LILES v. STATE.
    (Court of Criminal Appeals of Texas.
    March 8, 1911.
    Rehearing Denied April 5, 1911.)
    1. Criminal Law (§ 448) — Evidence—Matters of Opinion.
    In a prosecution for assault with intent to rape, testimony of a witness who had stated that the night before he had seen a man and woman or girl ride by the house on a black mule and had followed up the tracks the next morning, and that he had seen where the mule had stopped at a certain place in a mesquite flat, because it was tramped down and he could see the mule’s tracks, that he saw the tracks of a girl or small woman and a man’s tracks at such place, and that there was a place on the ground where the grass had been mashed down over a. space of two or three feet, was not inadmissible as opinion evidence, but was admissible as a mere recitation of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1039-1045; Dec. Dig. § 448.]
    2. Criminal Law (§ 448) — Evidence—Matters op Fact or Opinion.
    Where a witness had testified that she heard the cries of a woman or girl and also the sound of a man’s Voice which seemed to be located in a flat of bushes across the road from her house, that she had heard accused’s voice a number of times and had heard the man’s voice distinctly, she could testify that she recognized the man’s voice at the time as the voice of accused, but that she might have been mistaken as to the identity; such testimony not being an opinion but a statement of a fact giving the grounds upon which she alleged her knowledge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1045; Dec. Dig. § 448.]
    
      3. Criminal Law (§ 1169) — Appeal—Review — Withdrawal of Improper Evidence — Cure of Error.
    In a prosecution for assault with intent to rape, error in admitting testimony, as to what a witness’ husband has stated to her concerning his opinion that a man’s voice heard in the bushes together with the voice of a girl was the voice of accused, was cured, where the court withdrew such evidence from the jury and admonished them not to consider it for any purpose, in view of the fact that the subject-matter of the conversation testified to had been testified to by each of the witnesses and properly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.]
    4. Witnesses (§ 391) — Cross-examination-Scope.
    In a prosecution for assault with intent to rape, where accused, to impeach prosecutrix, produced a witness who testified that prosecu-trix had stated before the grand jury that “defendant had penetrated her,” the state on cross-examination of such witness could elicit the fact that prosecutrix had also testified that, at the time of the penetration which she stated had occurred, she was lying on the ground, and that accused was on top of her, that prosecutrix did not use the word “penetrate,” but, being questioned as to the facts, stated that accused had his private párts against her, and that he bad tried to get her drawers up, and that he finally put it in her, and that she continued to slap him in the face.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248; Dec. Dig. § 391.]
    5. Criminal Law (§ 829) — Instructions — Requests.
    Refusal to give special charges incorporated in the main charge is not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Jim Liles was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    J. T. Daniel, P. C. Sanders, and Penix & Eberhart, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with assault with intent to rape. 1-Ie was placed on trial this time, under the indictment for the offense of malting an aggravated assault on Annie Lee Liles, a girl under 15 years of age, and convicted; his punishment being assessed at a fine of $500 and imprisonment in the county jail for one year.

This is the second appeal in this case; the judgment of the court upon the former appeal being reported in 58 Tex. Cr. R. 310, 125 S. W. 921. Defendant reserved a number of bills of exception to the admissibility of certain testimony. The first three relate to the testimony of Dudley Lotspeich. This witness testified that on the night of the alleged assault he saw a man and woman, or girl, come riding by his house, riding a black mule. Just after passing his house, they turned out of the road and rode down into a mesquite flat. Shortly thereafter he heard a female voice crying, and heard a man’s voice rebuking her. He recognized the man’s voice as that of this defendant. He did not go down there that night, but next morning he went to where he saw the man leave the road the night before and found the mule’s tracks. He followed the mule’s tracks down into the mesquite flat to where the mule stopped. He could tell he stopped because it was tramped down and he could see the mule’s tracks. Here he also saw the tracks of a girl or small woman and a man’s tracks. The grass about the place had been mashed down over a space of two or three feet or more. Defendant objected to the witness stating “he saw the tracks of a girl or small woman,” on the ground that it was an expression of opinion. He also objected to that part of the testimony about the mule’s tracks and could tell where the mule stopped, because it was tramped down and he could see the mule’s tracks, and that he there saw also the tracks of a girl or woman, on similar grounds. He also objected to the witness testifying that there was a place on the ground where the grass had been mashed down over a space of two or three feet. We hardly think this testimony bears the construction placed thereon by defendant. It was not opinion evidence, but a mere recitation of facts. He saw the mule’s tracks; he saw the woman’s tracks; he saw the grass mashed for a certain space. As we understand the rule, this character of testimony has always been held admissible. Clark v. State, 28 Tex. App. 195, 12 S. W. 729, 19 Am. St. Rep. 817; Rippey v. State, 29 Tex. App. 44, 14 S. W. 448; Thompson v. State, 19 Tex. App. 613; Goldsmith v. State, 32 Tex. Cr. R. 115, 22 S. W. 405.

Defendant also reserved bills of exception to certain parts of Mrs. Lotspeich’s testimony. She testified: “I heard the cries of a woman or girl. I recognized one as the voice of a female, and also heard the sound of a man’s voice, both of which seemed to be located out in the flat of bushes- across the road from my home. I could not understand anything that was being said by the man or girl, but could plainly distinguish the tone of the voices as that of a man and a woman, or girl. At times his voice would be low; but, as the cries were louder or more distinct, his voice would be louder, and, judging from the tone, they were of a rebuking manner, as though to get the other voice to hush. I heard the man’s voice distinctly, as I thought, and. recognized it as that of defendant. As to the voice of the female, it did not occur to me at all who it was. I could hear her talking, but could not distinguish the words, and her talk would be intermingled with cries.” Defendant’s objection was to that part bf the testimony where the witness says she took the voice of the man to be that of Jim Liles, defendant. The witness also testified: “I do not say positively that tlie man’s voice X iieard was tliat of defendant. Only remember that I recognized it at the time as his voice, but I could be mistaken as to the identity. I had heard his voice a number of times.” In the light of all the testimony of the witness, we think the statement admissible. She shows she is familiar with the sound of defendant’s voice; that he was at times talking loudly, and she recognized it as his voice. This is not an opinion, but a statement of a fact, giving the grounds upon which she alleged she knew the voice. Defendant also reserved a bill to the action of the court in permitting the witness to detail a conversation between herself and •her husband that night. She said when her husband came in they both began talking, “and we both stated we recognized the man’s voice. I remarked to my husband, ‘Didn’t that man’s voice sound like Jim Liles?’ and he answered it did to him, and ‘that is who I took it to be.’ ” Defendant promptly objected to this testimony, and reserved a bill of exceptions. The court in explanation of this bill states the defendant, on cross-examination, developed that Mrs. Lotspeich and her husband held a conversation in regard to these matters, and he was under the impression -that defendant had gone into this conversation ; but, upon defendant insisting that he had not done so, he withdrew it from the jury, and in his charge to the jury we find the following clause: “I withdraw from your consideration, gentlemen, evidence of Mrs. Lotspeich in regard to the things she testified her husband told her, and which she told her husband on the night of the alleged assault, immediately after he' came back into the house, and you will not consider said statements between said parties for any purpose whatever, but will entirely eliminate it.” In a number of cases in this state it has been held, where evidence was erroneously admitted, but the court afterward withdraws it from the jury, and instructs them to disregard it, the error in admitting it is cured. Sutton v. State, 2 Tex. App. 342; Moore v. State, 7 Tex. App. 14; Reynolds v. State, 8 Tex. App. 412; Graves v. State, 14 Tex. App. 113; Skaggs v. State, 31 Tex. Cr. R. 563, 21 S. W. 257.

This has always been the rule, unless the testimony is such that its effect is very harmful and prejudicial. Apply this general principle to this case, there was nothing testified to in the conversation except what had been testified by each of the witnesses, and which was properly admissible, and this does not present reversible error.

In his next bill of exception defendant complains that, when defendant placed the witness Geo. ■ Metcalf on the witness stand to impeach the state’s witness Annie Lee Liles, and prove by him that said state’s witness had testified before the grand jury that “defendant had penetrated her,” the court erred in permitting the state, on cross-examination, to prove the following facts: “The witness stated, in addition to what I have heretofore testified to, that, at the time of the penetration which she stated had occurred, she was lying on the ground, and that the defendant was on top of her. The witness did not use the word penetrate; but, being questioned as to the fact, she stated that defendant had his private parts against her, and that he had tried to get her drawers up, And that he finally put it in her, and that she continued to slap him in the face.” When the defendant placed the witness on the stand to impeach the prosecuting witness by an isolated circumstance, all she said in that connection was admissible, and the court did not err in this respect

The court did not err in permitting the state to prove contradictory statements made by the defendant’s witness Mrs. Josie Liles, limiting the purpose for which it was admitted in his charge, as he did.

The court gave in his main charge almost the exact language of special charges Nos. 2 and 3, consequently there was no error in refusing to give said special charges. The court also gave the special charge requested by defendant on the question of alibi.

The charge in this case was a fair presentation of the law as applicable to the facts in evidence, and, finding no reversible error, the judgment in this case is affirmed.  