
    HODGES v. STATE.
    (No. 10824.)
    Court of Criminal Appeals of Texas.
    Nov. 16, 1927.
    1. Criminal law <©=>695(2) — Objection that prosecutrix’s and her mother’s testimony, in statutory rape trial, that her father was dead, was immaterial and irrelevant, held not good.
    In statutory rape trial, objection that prose-cutrix’s testimony that her ’father was dead, and her mother’s testimony that she was a widow, was immaterial and irrelevant, held not good.
    2. Witnesses <©=>240(4) — Question to prosecu-trix whether she felt any different after drinking something given her by defendant held not leading or suggestive.
    In trial for statutory rape, wherein prose-cutrix testified that defendant gave her something to drink out of a bottle, state’s question to her, “Was there any difference in your feelings before and after you drank that?” held not leading or suggestive.
    3. Witnesses <©=>240(3) — Question calling for “yes” or “no” answer, without suggesting which, is not leading.
    A question calling for answer “yes” or “no” is not necessarily leading, unless it goes further and suggests which of such answers is desired or what answer is expected.
    4. Rape <@=>46 — Prosecutrix’s testimony as to statements showing that one of party, returning after night at hotel, left automobile before reaching their home town tb allay suspicion, held admissible in statutory rape trial.
    In statutory rape trial, prosecutrix’s testimony as to what was said between parties, showing that purpose of one of them in leaving, before reaching their home town, automobile in which he, defendant, prosecutrix, and another girl were returning from town where they had spent night at hotel, was to allay suspicion and prevent inquiry, held admissible.
    5. Witnesses <©=>396(1) — Prosecutrix admitting on cross-examination that she told officers of intercourse with another than defendant held properly permitted to testify on redirect examination that defendant suggested such statement.
    In statutory rape trial, wherein prosecutrix admitted on cross-examination that she told officers she had had intercourse with another than defendant, she was properly permitted to testify on redirect examination that defendant told her they would drop case against him if she made such statement.
    6. Witnesses <®=>396( I) — Prosecutrix cross-examined as to. her statements out of defendant’s presence held properly permitted to explain what was said on redirect examination.
    In statutory rape trial, wherein defendant asked prosecutrix about statements made by her to officers out of defendant’s presence, her explanation as to what was really said was admissible on redirect examination, especially as against objection that it was out of defendant’s presence.
    7. Criminal law <©=>351 (8) — Proof of actual or attempted subornation of perjury or procurement of fabricated testimony is material, if accused’s connivance be shown.
    Proof of subornation or attempted subornation of perjury or of fabrication or attempt to procure fabricated testimony for accused becomes material, if connivance thereat can be brought home to accused.
    8. Criminal law <©=>549 — Accused’s connivance in actual or attempted subornation of perjury may be proved by circumstances.
    Accused’s connivance in subornation or attempted subornation of perjury or procurement of fabricated testimony may be proven by circumstances like any other issuable fact.
    9. Criminal law <©=>351 (8) — 'Testimony as to witness’ agreement in defendant’s presence to swear falsely as to statement by prosecutrix held inadmissible, in view of testimony that defendant said nothing to induce agreement.
    In trial for statutory rape, testimony that witness agreed, in defendant’s presence, at request of sister of another witness, truth of whose testimony as to prosecutrix’s statement that others than defendant were intimate with her had been denied by prosecutrix, that they would swear they heard prosecutrix make such statement, held inadmissible, in view of former witness’ positive testimony that defendant said nothing to induce her to agree to testify falsely.
    10. Criminal law <@=>351(8) — Admission of testimony as to witness’ agreement in defendant’s presence to testify falsely as to prosecutrix’s statement concerning her .intimacy with others than defendant held prejudicial error.
    In statutory rape trial, admission of testimony as to witness’ agreement in presence of defendant, who said_ nothing, to testify falsely as to prosecutrix’s "statement concerning her intimacy with others than defendant, held prejudicial error; such testimony seeking to brand defendant as procurer of false testimony and strongly suggesting that testimony of another witness as to such statement was fabricated.
    I!. (Criminal law <©=>351 (8) — One not sanctioning procurement of false testimony by. others is not bound thereby.
    One cannot be bound by actions of his friends or relatives in procuring false testimony, unless he in some way sanctioned them.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    Jess Hodges was convicted of rape, and he appeals.
    Reversed and remanded.
    H. L. Carpenter, of Greenville, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of rape; punishment, five years in the penitentiary.

Appellant was charged with statutory-rape upon a girl over the age of 15 years and under that of IS. The facts introduced on behalf of the state and relied upon seem ample to justify the jury in concluding appellant guilty. Appellant’s bills of exception Nos. 1 and 9 respectively complain .that the prosecutrix was allowed to say that her father was dead, and that the mother of prose-cutrix testified that she was a widow. The only objection offered to this was that it was immaterial and irrelevant. Such objection is not good. Pangburn v. State (Tex. Cr. App.) 56 S. W. 72; Wilson v. State, 63 Tex. Cr. R. 81, 138 S. W. 409; Russell v. State, 88 Tex. Cr. R. 582, 228 S. W. 948.

Prosecutrix testified that appellant gave her something to drink out of a brown bottle. She was asked by the state, “Was there any difference in your feelings before and after you drank that?” We are not quite able to see how this question was leading or suggestive. A question which calls for the answer yes or no is not therefore necessarily leading; it must go further and suggest which of said answers is desired or what answer is expected. Ashlock v. State, 16 Tex. Cr. App. 21; Malcek v. State, 33 Tex. Cr. R. 21, 24 S. W. 417; Moore v. State, 49 Tex. Cr. R. 504, 96 S. W. 321. The question set out did not suggest what answer was expected.

The testimony shows that appellant and one Abies drove a car containing two girls under the age of consent to Greenville and spent the night at a hotel, Abies occupying a room with one of'the girls and appellant another room with prosecutrix. The two couples got together early the next morning and started in a car to their home town of Quinlan. When they came to the little town of Gash, Abies left the party. Objection appears to a question which was asked prose-cutrix as to whether anything was said at Cash as to why Abies should get out of the car there. We think it entirely proper to show what was said between the parties manifesting Abies’ purpose to leave the car in order to allay suspicion and keep down any inquiry as to improper conduct on their part. Nothing is shown in allowing prosecu-trix to testify that an officer came and interviewed her in regard to what took place.

On cross-examination of prosecutrix she admitted that she had told officers, who were probing this rape case, some time after it was supposed to have occurred, that she had had intercourse with one Albert Har-crow. On redirect examination she was asked why she told this to the officer. This being objected to, the question was changed, and the witness stated that appellant told her that if she would say somebody else had intercourse with her they would drop his case where it was. Certainly if for the purpose of affecting the credibility of prosecutrix as a witness appellant had shown that she stated as true certain facts now denied by her the state would have the right to sustain her by showing that the discrediting statements were made at the instance of appellant and that they were not true.

If we understand bill of exceptions No. 7, it sets out that appellant asked prosecutrix relative to statements made by her to the officers out of the presence of appellant, and that on redirect examination her explanation was offered as to what was then really said. We do not think this a proper subject of objection, and especially not the objection made, which was that it was out of the presence of appellant. We have carefully examined the other bills of exception appearing in the record and find nothing in them calling ing for discussion save bills of exception Nos. 15 and 20, which present practically the same question.

The .only defensive issue made by appellant in testimony was that prosecutrix was of unchaste character. He did not deny having intercourse with her; in fact he did not testify. She testified without contradiction that soon after the alleged rape he told her that if she would say that she had had intercourse with others his case would be dropped, and she admitted that, acting upon his suggestion, when an inquiry into the matter was begun, she said she had been intimate with another; but when she found that this resulted in the arrest of the other man whom she named, she then repudiated the truth of this and affirmed that she had made it at appellant’s request and suggestion. The only witness offered by appellant in support of his claim that prose-cutrix was of unchaste character was Opal Knighten, who swore that after said alleged rape prosecutrix told her that she did not see why they made such a fuss about Jess Hodges when other boys had been intimate with her. Prosecutrix took the stand and denied the truth of the testimony of Opal Knighten. Thereafter the state put on the stand Beulah Sisk, who swor.e that on a certain occasion prior to this trial she was at the home of Opal Knighten, and appellant was there calling upon Eula, a sister of Opal Knighten, the latter not being at home. In appellant’s presence Eula asked witness to agree, and she did agree, that they two would also swear on appellant’s trial that they heard prosecutrix say that she did not see why they made so much fuss about appellant when she had been intimate with other boys. This witness said appellant did not ask her to so swear, but that he was present listening while she made the agreement which'Eula Knighten asked her to make.

It appears that after this agreement was made appellant’s attorneys had a subpcena issued for Eula Knighten and B,eulah Sisk, and witness said they had come to court in obedience to this process. She further said that what she and Eula had agreed to testify was false as she had never heard prosecutrix make any such statement. Proof of subornation of perjury or attempted subornation, or the fabrication of testimony, or the attempt to procure fabricated testimony in behalf of the accused, becomes material if connivance at same can be brought home to the accused, and we have no doubt of the fact that this may be proven by circumstances, as any other issuable fact. However, we are of opinion that in this ease the state was not entitled to make the proof by Beulah Sisk which is above set out. This witness testified positively that appellant did not say a word to her in any effort to induce her to agree to testify falsely. The most 'that could be said was that he was present when she and Eula Knighten made such agreement. It is unquestionably true that the testimony which she says she and Eula Knighten agreed to give was never offered upon this trial.

That such testimony as that given by Miss Sisk was greatly injurious to appellant is apparent. It not only sought to fasten upon him the character of a procurer of false testimony, but also operated to strongly suggest that the testimony of Opal •Knighten was the result of fabrication. Wé have considered the circumstances which might have had weight with the learned trial judge in inducing him to admit this testimony, as against appellant, but are unable to bring ourselves to believe that the circumstances were sufficiently strong to justify any conclusion that appellant authorized the agreement between Miss Sisk and Eula Knighten.

One cannot be bound by the actions of his friends or relatives in procuring false testimony, unless he in some way sanctioned same. Nader v. State, 86 Tex. Cr. R. 424, 219 S. W. 474.

Believing the testimony given materially hurtful to appellant, and that it was improperly admitted, we are under the necessity of holding sanie to be a reversible error. For such error the judgment will be reversed and the cause remanded. 
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