
    VICKERS v. STATE.
    (No. 9991.)
    (Court of Criminal Appeals of Texas.
    June 9, 1926.
    Rehearing Granted Nov. 3, 1926.)
    1. Rape &wkey;>52 (I) — Conviction of statutory rape held warranted.
    Evidence held sufficient to warrant conviction of statutory rape. '
    2. Criminal law &wkey;>598(8) — Continuance for absence of witnesses, for whom no attachment was issued before trial, week after term began, held properly refused.
    Continuance for .absence eft witnesses, for whom no attachment was issued before trial, a week after first day of term, held properly refused, application for subpoena being insufficient diligence.
    8. Criminal law <&wkey;713 — District attorney’s use, in argument as to penetration, terms in physicians’ testimony, held not error.
    In trial for statutory rape, district attorney’s use of descriptive terms used by physi-cían testifying, in argument, as to extent of penetration, held, not error.
    4. Rape <@=»7 — Penetration need not be of particular depth.
    To constitute rape, penetration need not be of any particular depth.
    5. Rape <&wkey;23 — Indictment charging that pros-ecutrix was under 15 held sufficient, though 18 is age of consent.
    Indictment for statutory rape, charging that prosecutrix was under 15, held skffieient, though statute, as amended, makes 18 years the age of consent.
    On Motion for Rehearing.
    6. Criminal law (§=»4I9, 420( 10) — Admission of testimony as to statements of prosecutrix’s mother, out of defendant’s presence and hearing, concerning rape committed on day before, held reversible error.
    In trial for statutory rape, testimony as jo statements of prosecutrix’s mother, out of defendant’s presence and hearing, that defendant had brutally abused prosecutrix on day before, held hearsay, .admission of which over valid objection was reversible error, though objection renewed after its admission was sustained, and defendant requested no special charge not to consider it.
    Commissioners’ Decision.
    Appeal from District Court, Crosby County; Clark M. Mullican, Judge.
    G. E. Vickers was convicted of statutory rape, and lie appeals.
    Reversed and remanded.
    Vickers & Campbell, of Lubbock, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is statutory rape, and the punishment is 15 years in the penitentiary.

The prosecutrix was about 9 years old at the time of the alleged offense and was about 11 years old at the time of the trial. She was the stepdaughter of the appellant-. The question most seriously presented by appellant is as- to the sufficiency of the evidence to support the verdict. Prosecutrix testified, among other things, to the following:

“If I tell you whether or not my stepfather and myself left the house together and went off anywhere that evening, will you not let him kill me? He said he would kill me. My stepfather and myself left the house together that evening and went out in the pasture. He made me go. That happened between sundown and dark. I do not know just how far he and I went from the house, and I never looked back to see if we went out of sight of the house, but we went out into the cow pasture. Mr. Vick-ers did something to me when we got out into the pasture. He did ugly things to me. I got •down on the ground, he made me do that, and he got on me, and he unbuttoned his trousers, and he put his private in my private, and it hurt me. As to whether or not he ever made any threats to hurt me in any way if.I said anything about it, the first time, when I was at grandmother’s, I said that I didn’t want to, and he picked up the gun and pointed it at me and said if I told it he would shoot me. That was at Bouie, Tex., and that was the first time. This time out in the pasture was not the first time that he fooled with me. He fooled with me several times, I don’t know how many times; every time he cohld get me away from my mother he would fool with me. Doing the same thing he did out in the pasture. After this trouble out in the pasture, we drove the cows on up to the house, and, when we got about half way, we met mother at the cow pen, and Mr. Vickers picked up a stick and threw it at mama and said, ‘Mama, why ain’t you at home resting? ’ As to whether or not I told mother about having the trouble, she followed us. I don’t know when my mother first found out about it. The next morning she made me tell her whether or not it was so. She had followed us into the pasture, and I told her that it was so. That was the next morning. It was two or three days after I told my mother about this before she and my stepfather separated. A doctor at Slaton examined me, and I have seen that doctor here this morning. His name is Dr. Adams.
“I don’t know whether that was the next morning after we were in the pasture, or the second morning after, that we were in Slaton. I told my mother about that the next morning after it occurred. I understand what you mean when you say ‘his privates.’
“I tell the jury that he did actually put his privates in my privates; he is guilty; he did. He did that to me, and at more than one time, and he threatened to hurt me or kill me if I told about it. My mother and I were living in Crosby at that time, and the pasture where he had intercourse with me was down there on the farm where we were living at that time in Crosby county, and that all occurred in that county. I don’t remember when it was.”

On cross-examination, she testified as follows:

“He had had intercourse with me before we went to New Mexico. He had put his privates into my privates before we went to New Mexico. He told me that he put his privates in my privates; he did it; I know it myself, and he knows it; no one told me to tell that he had done that. It hurt me when he did that. He had done that same thing to me a good many times before this occurrence out in the pasture. He did that same thing to me twice before we went to New Mexico, but he did not do that to me while in New Mexico, Because he didn’t have a chance there. I never did tell my mother about this, she caught us, because he warned me he would kill me.”

Dr. S. H. Adams testified that he examined the prosecutrix in July, 1923, and the other testimony shows that this examination took place the second day after the alleged rape He testified that he found an abnormal dilation of the vagina, but no laceration; that he could introduce his finger, without pain, as far as the cervus, that is the lower part of the womb, which is about two inches. He further testified that the child, no doubt, had been tampered with in some way, but what caused the dilation he could not say. He testified that the hymen was absent, and, within, a child of that age, he could not have made an insertion with his finger if her vagina had been in a normal condition; that there appeared to be a .slight redness of the vagina. As to how long prior to the examination the penetration, if any, had been made, he could not say, and testified that he did not think that any matured, full grown man’s penis had made penetration of the child, but he testified that there could have been a partial penetration.

On cross-examination, he testified that the condition of the hymen showed a complete rupture of it, but it looked like it had not taken place in the last two or three days. He testified that he did not think, from his experience as a practitioner and from his knowledge of human anatomy, that the condition that he observed in the vagina of this child could have been caused by voluntary self-manipulation. He again averred that, in his opinion, the condition in this instance was such that there could have been partial penetration. He further testified that he inserted his finger about two inches, and did not try to go any further because he had reached the cervus. He further testified that the head of a normal male orgán could have made and entry there of perhaps one-half to three-quarters of an inch, without causing laceration.

The witness Dr. Qreen testified that he also examined the child, and the record shows that this examination took place about two days later than Dr. Adams’ examination, and Dr. Green gave it, as his opinion, that her condition was normal, with the exception that the hymen was obliterated. He further gave it as his opinion that she had not been penetrated by a male organ. On cross-examination, however, he said:

“The vulva is the outside parts of the female organ. The size of that opening depends on the person; it is in proportion to the size of the child. At her age, I could have inserted the finger into the lips.of the vulva without laceration, and I suppose he could have done that. * * * If he didn’t do any more than put the penis into the vulva, he could not have caused and would not have caused any laceration in the vulva; he couldn’t have done that. If he had introduced l$is penis into the lips of the vulva and had made a great pressure on it, it would not have affected the organism any, except right at the time of having intercourse.”

The appellant, testifying in Ms own behalf, denied any act of intercourse or improper relations with the child. He admitted, however, that she was with him at the time and place stated by her, and admitted that the next morning, after prosecutrix had been alone with her mother, his wife charged him with raping the child, hut claimed his wife often got mad at him. On cross-examination, appellant testified that, of all the mad spells his wife had ever had, she had never accused him of fooling with the child but one time.

The witness Ernest Grant, testified that he was at George Vickers’ house on the 25th of July, at which time the indictment charged the ofl;ense of rape, that he slept in the house the night of the alleged occurrence, that they all had supper together that night apd breakfast together the next morning, and that he slept in the house again the second night, and the next morning was when they took the little girl to Slaton. That h.e was present when those people came hack to the house after bringing the cows from the pasture, but did not notice any one crying or anything unusual with George Vickers or his wife or with prosecutrix, but that on the second night was the first time he noticed anything; that he heard them talking that ¡night, but could not understand everything that was being said.

On cross-examination by the state, this witness testified that he noticed something a little unusual the second night; that night, after they went to bed, he heard some one crying in ■ the other room or sobbing, and heard a noise, but couldn’t understand everything; that he heard the noise, and they got up and left the house; that he didn’t know who got up and left the house, but presumed it was Mr. and Mrs. Vickers, as they were the only two in the other room, besides the little girl; that he heard some one moaning or crying and could tell who it was, it was Mrs. Vickers; that he heard Mrs. Vickers say one time that she was suffering now, but he would suffer in the long run and he was going the next morning, and that was all he understood.

On this testimony, the appellant earnestly contends that the state has failed to make a case and that, under the authorities, it is the duty of this court to grant a new trial. He cites many cases which, he contends support his proposition. In view of the earnest insistence'of the appellant, we have carefully examined each of the cases cited and will discuss the most important cases presented.

The case of Montresser v. State, 19 Tex. App. 281, was reversed by this court because of the insufficiency of the testimony. In that case, however, Judge Willson held that the testimony of the child was, in many respects, open to suspicion. These suspicious circumstances were, pointed out by him as being first, her tender years, which rendered her susceptible to the influence of malicious and designing persons, and it was shown that her father and the defendant were not upon friendly terms. She testified through the medium of an interpreter, stating that she could not speak the English language, but could only speak the German language, and yet she detailed conversations which she had had with the defendant, who it was proved, could not speak the German language. She-made no outcry when she was outraged. She made no complaint of the outrage for more than three days after it occurred. She went about and played with other children as usual. No traces of the outrage were discovered upon her clothing nor did her appearance and demeanor indicate that she had been injured, except that upon examination, on the fourth day after her alleged injury, her private parts were found to be swollen, sore, inflamed, and somewhat lacerated, as if they had been penetrated by the male organ. The' place where she located the commission of the crime was a room in the second story of defendant’s house, .which house was in the city of Dallas, adjacent to other houses' which were at the time inhabited, and very near also to the h.ouse of her father. Defendant’s house was lightly constructed” of wood, and a noise in one part of the house would pervade the whole building. She stated that the crime was committed about 4 o’clock p. m. on Saturday, the 21st of'February, 1885. During the whole of that evening defendant’s wife and a servant woman were in and immediately about the house, heard no noise upstairs, did not see the child on the premises, and did not see the defendant there from soon after dinner until supper time.

Appellant also cites the ease of Gazley v. State, 17 Tex. App. 267. This case was also reversed on the facts, but it is authority for the proposition that there may be a conviction for.rape upon the uncorroborated testimony of the injured female. In this case, the pros-ecutrix made no outcry or complaint until the elapse of 11 days thereafter when she claimed defendant had ravished her, and ir was only after it was discovered by her mother that the child was afflicted with some disease of her private organs. The record discloses that time and again she denied that appellant had troubled her. And it was only after habitual questioning by her mother and her aunt that she said the appellant was the guilty party. A bare statement of the facts in the Gazley Case is sufficient to show that it is not in-point.

The case of Draper v. State (Tex. Cr. App.) 57 S. W. 655, was reversed by this court because of the insufficiency of the testimony, but, in that case, three physicians testified that the private parts of the prosecutrix, external and internal, were normal and that there was no evidence that any violence had been used on her. At least two of the examining physicians testified positively that she-had not been penetrated. A statement of facts which is manifestly different from that found in this record.

Appellant cites the case of Galaviz v. State, 82 Tex. Cr. R. 377, 198 S. W. 946. The Galaviz Case, goes no further than to hold that penetration must be proved beyond a reasonable doubt and that, in .view of the prosecu-trix’s contradictory statements with reference to penetration, the state had not met the burden of proof in this case.

In the case of Petty v. State, 94 Tex. Cr. R. 114, 249 S. W. 849, which appellant cites, prosecutrix denied penetration, and it was on that account that the case was reversed.

The case of Kennon v. State (Tex. Cr. App.) 42 S. W. 376, cited by appellant, is in no wise based on a statement of facts similar to that found in this record. In the Kennon Case, prosecutrix was the sole witness for the state, and her evidence was that defendant drove her in his buggy, meeting many people, before he took her to the woods where they had intercourse, that she made no outcry on the way, although she knew his intentions, and that she made no complaint for several weeks after the act. The record further discloses that she was over 16 years of age.

In the case of Wallace v. State, 48 Tex. Cr. R. 548, 89 S. W. 827, cited by appellant, it is said:

“The only question for revision relates to the sufficiency of the evidence. The evidence is quite conflicting as to the age of the child, but the testimony on the part of the state amply supports the conviction. Appellant also insists that there is no evidence corroborating prosecu-trix. Under the law, this is not necessary, however much it may be desired that her testimony should be corroborated wherever the state can do so.”

In the case of Alcorn v. State (Tex. Cr. App.) 94 S. W. 468, the record shows that no physical examination was made of the girl, that, during the absence of her mother and other members of the family from appellant’s house, appellant raped prosecutrix, but the wife of appellant was in the room at the time. No outcry was made by prosecutrix at the time or directly afterwards.

In the case of Donoghue v. State (Tex. Cr. App.) 79 S. W. 309, the record shows that prosecutrix claimed that appellant raped her twice while she was sleeping on the same bed with appellant’s wife; that she made no complaint, and that two or three days thereafter her mother discovered her walking peculiarly, and, upon being questioned, she told her mother what appellant had done to her. Prosecutrix was impeached by several of her neighbors, they declaring her reputation for truth and veracity to be bad. The record also shows that she had previously made similar accusations against another party, which had proved false. She was also contradicted on material matters by her mother. In that case, the evidence was held insufficient.

We have examined the other authorities presented by appellant and have reached the conclusion that none of them is authority for the proposition that this case should be reversed because of the insufficiency of the testimony. We think that the testimony of prosecutrix, taken all together, is not of such an unreasonable nature as to be contrary to human experience. We think that her explanation as to why she did not tell her mother promptly upon return to the house is reasonable, under the authorities. If appellant had threatened her life in the event she told this, that would justify her in not disclosing it while he was present. The record shows that, on the morning following the alleged rape, when she was alone for the first time with her mother, she did disclose the affair to her. The appellant’s own testimony shows that, immediately after his wife and stepdaughter were left alone, his wife began to make accusations against him, based on what the child had told her. His testimony further corroborated the girl in every detail as to the opportunity for the act of intercourse testified to by the child. The only contradiction between them of a material nature is as to the actual happening of the act, and the state would hardly be required to furnish positive corroboration of this particular detail of the transaction. We do not agree with appellant’s counsel to the effect that the child’s testimony, taken as a whole, is susceptible of the conclusion that she testified that her mother actually saw her stepfather and her in the act of intercourse. It is true that in one place in her testimony she says that her mother “caught” her, but, we think, that this does not necessarily mean that the child intended to say that her mother saw them in the act of intercourse. A careful review of this testimony and of the authorities presented convinces us beyond question that the jury was warranted in concluding that the appellant was guilty, as charged.

We are not in accord with appellant’s contention that the court erred in refusing to grant his application for a continuance. Said application is based on the absence of certain witnesses, and the application itself shows that, while the witnesses attended at a former term of court, it fails to aver that they were in attendance at the first day of the present term, and it shows that the clerk reissued subpoenas for such witnesses and forwarded same to the sheriff of Wichita county. 'The record shows that the term of the court at which this trial took place convened on the 29th day of June, and the case was not called for trial until the 6th day of July. The application shows that the witnesses were under subpoena, and it does not show that any attachment was issued for them, although they were absent on the first day of the term at which the trial took place, and it is well settled that diligence is insufficient if only a subpoena was applied for, when the law authorizes an attachment. Long v State, 17 Tex. App. 129; Massie v. State, 30 Tex. Cr. App. 64, 16 S. W. 770; King v State, 67 Tex. Cr. R. 63, 148 S. W. 325.

Appellant complains at the court’s action in permitting the witness Martin to testify to a purported conversation had with the defendant’s wife, in the absence of defendant. The bill shows that the appellant objected to said testimony and the court sustained the objection, but never instructed the jury to not consider such evidence theretofore offered. The record fails to show that appellant offered a special charge asking the court to so instruct the jury, and, in the absence of same, no error is shown by this bill.

Two other bills of exceptions complain at the argument of the district attorney to the effect that “the law says that the vulva and lips constitute a part of the female organ,” and also to the effect that “the law says that it is only necessary for the lip of the vulva to be penetrated.” The terms used by the district attorney are found in the testimony of the physicians who testified in the case and are descriptive of portions of the female organ of the prosecutrix. The law is certain to the effect that, in order to constitute rape, the penetration need not be of any particular. depth. This being the law, and the facts being as above stated, we think the district attorney was within the record in making the argument complained of.

Appellant filed a motion in arrest of judgment on the ground that the indictment charges prosecutrix was under 15 years of age, it being his contention that, as the statute has been amended to make 18 years the age of consent, the indictment therefore did not state an offense. We cannot agree with this contention. The statement that prosecutrix was any number of years of age, provided it be less'than the age of consent, is sufficient to charge statutory rape.

Finding no error in the record, the judgment is affirmed.

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.

On Motion for Rehearing.

BERRY, J.

Appellant makes serious complaint in his motion of our disposition of his bill of exception No. 5. We have carefully examined it again. The state’s witness Martin was on the stand testifying to what occurred the .morning after the alleged rape. He said Vickers (appellant) went on to work, and, after he went on to work, “Mrs. Vickers told me. * * * ” At this point, appellant objected to what anybody told witness out of the presence and hearing of appellant. The court overruled the objection, and witness swore that Mrs. Vickers,-appeRant’s wife, told him that morning what she had wanted to tell him the night before was that she had more trouble than she could bear; that Vickers had carried her little girl in the pasture on the day before and brutally abused the child and that she wanted a message sent to her boys, and that she had been prevented by Vickers from sending the message and that it was impossible for her to get a message. At this point, appellant renewed his objection and the court sustained same. The bill states that the court did not instruct the jury not to consider this testimony, and, in our original opinion, we seemed to consider the fact that appellant did not ask a special charge instructing the jury not to consider the testimony as rendering the complaint of the testimony unavailing. A careful analysis of the bill shows that appellant’s complaint in said bill is not of the refusal of an instruction, but is based on his objection to the admission of the hearsay and damaging testimony. The witness had reached a point where his language indicated that. he was about to state what Mrs. Vickers “told” him. This objection the court overruled and permitted the witness to testify what she told him. This was hearsay of a very damaging character and should not have been admitted. The bill has no qualification and no explanation and shows that the exception taken was to the admission of the hearsay evidence.

We hardly think that, after admitting it over a valid objection, the thereafter sustaining an objection renewed would put appellant in such an attitude as to deprive him of his rights to complain at the admission of the testimony.

As above stated, the testimony was hearsay of the very rankest type and was very damaging to the appellant’s defense in the case. It follows from what we have said that, in our view, the judgment of affirmance should be set aside and the motion for rehearing granted and the case should be reversed and the cause remanded, and it is so ordered.

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. 
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