
    MYERS v. STATE.
    (No. 9818.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.)
    1. Criminal law <§=3363 — Whether testimony otherwise admissible was res gestae held immaterial.
    In rape prosecution, where testimony of witness as to prosecutrix telling her what happened was otherwise admissible, it was immaterial whether it was part of res gestae.
    2. Rape ©=348(2) — State may show complaints of rape as original evidence not showing particulars.
    In rape prosecution, res gestae rule is not transcended when state shows as original evidence that recent complaint of outrage was made, but particulars thereof and details of crime are not to be recited.
    3. Rape <§=>43 (2) — State may prove as original evidence prosecutrix’s state and her appearance and condition of clothing shortly after alleged occurrence.
    In rape prosecution state may prov» as original evidence state of prosecutrix, her appearance, marks of violence, and condition of clothing shortly after alleged occurrence.
    
      4. Rape <©=»48(2) — Testimony that prosecutrix “told me these things” held not equivalent to relating details of prosecutrix’s complaint.
    In rape prosecution, testimony of witness that prosecutrix came to her house after alleged occurrence and told her these things held not equivalent to saying she told witness what had been related by her on the witness stand.
    5. Criminal law <©=l 169(1) — Testimony of wit- . ness to whom prosecutrix complained of rape that she gave her douche and “had her bloody . clothes out there” held not prejudicial.
    In rape prosecution, where prosecutrix came to witness’ house and told her what had happened, that witness testified she gave her a douche and “had her bloody clothing out there” held not prejudicial.
    8.Rape <©==43 (2) — Testimony of physician! that examination of prosecutrix indicated first act of intercourse held admissible in rape prosecution.
    Testimony of doctor in rape case after examination of prosecutrix that it was her first act of sexual intercourse held, under facts, admissible.
    7. Criminal law <§=3706 — Questions to defendant held not injurious as impressing jury he had made statement admitting rape.
    In rape prosecution, questions to defendant as a witness held not in themselves injurious because necessarily impressing jury that he had made statement to district attorney in which he admitted using force.
    8. Criminal law <©==1091 (3) — Bill of exceptions complaining of questions as to statements of accused held defective as not certifying as fact that defendant was under arrest.
    Where objection was as to questions asked by district attorney concerning statements of defendant, bill of exceptions complaining thereof was defective in not certifying as fact that defendant was under arrest.
    9. Rape <®=5I (7) — Testimony of witness who saw prosecutrix and defendant in automobile held sufficient as to their identity. '
    In rape prosecution, testimony of witness who passed automobile in which defendant and prosecutrix were held sufficient as to their identity.
    10. Criminal law <©=3829(1) — Refusal of charges, covered by charges given, held not error.
    Refusal of change, principles of which were contained in charges given, held not error.
    Appeal from Criminal District Court No. 2, Dallas County; Chas. A. I’ippen, Judge.
    Wilbur Myers was convicted of rape by force, and he appeals.
    Affirmed.
    J. Hardy Neel and Grover Adams, both of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for rape by force, punishment being five years in the penitentiary.

About a week before the alleged offense prosecutrix was introduced to appellant by a young lady friend, upon which occasioh they both went riding with him in his automobile, a coupé. On the night of the alleged offense he had an engagement with both of them again, but the other young lady was out of the city. Prosecutrix went with him alone, and claims the offense to have been committed in the car while on the trip. She says he made two efforts to accomplish his purpose before succeeding at the third attempt, and that after each unsuccessful attempt he would drive to another unfrequented road; that while he was engaged in the second effort a car passed them; that she screamed and called for help. In this she was corroborated by the witness Jennings, who, with his wife in their car, passed the one occupied by appellant and prosecutrix. The witness says prosecutrix put her head and shoulders out of the car and screamed several times, saying, “Stop • and help me.” Witness was unarmed and his wife nervous, and he did not stop. Prosecutrix says after these parties passed them appellant told her if the man had stopped he (appellant) would have killed both the man and prosecutrix. After this interruption appellant left the place where it occurred and drove to another unfrequented road. Prosecutrix claims the coupé door on the side away from the steering wheel was wired so it could not be opened. It is not denied but that the door ,was wired. Appellant claimed it was because of a broken latch, and that the wire could readily be unhooked and the door opened. It may be stated here that appellant denied making any threats and claimed the act of intercourse to have been with her consent. Appellant says she made no resistance when he unfastened her clothing, but says she “hollowed some but didn’t cry.” He also denied that she called for help when the Jennings car passed them-. Prosecutrix testified that she had bruises on her shoulders, legs, and back, and was corroborated in this regard by a physician and other witnesses.

Prosecutrix testified that when appellant brought her back to her boarding house none of the inmates were up; that she went to her room, changed her clothing, and went to a friend of hers, Mrs. Herring, who lived some two blocks away, and told her what had happened. Mrs. Herring testified:

“She (prosecutrix) came to my house about 11:30 that night, and she seemed to be hysterical; she hit the porch calling me, and she came on in the room, and I met her just as she got to the door-, and when she got to me she began crying and went almost in hysterics and told me these things. I took her up to the bathroom and gave her a douche as best I could; I let her do it'for herself. There was blood on her clothing. I have them out there if you want them. I called a physician for- her that night.”

By bills of exceptions Nos. 1 and 2 appellant complains at the reception of this evidence for the reason stated that it was not “res gestee.” It may be said here that the bill does not certify as a fact that it was not res gestee, but only shows that such objection was urged. It might be a debatable question under the facts whether it was res gestee, but that is immaterial. We think the rule not transcended that the state may show as original evidence that recent complaint of the outrage was made (but the particulars of the complaint or the details of the alleged crime are not to be recited), and may also prove as original evidence the state of prosecutrix, her appearance, marks of violence, and condition of. her clothing shortly after the alleged occurrence. Pefferling v. State, 40 Tex. 492; Lawson v. State, 17 Tex. App. 303; Johnson v. State, 21 Tex. App. 379, 17 S. W. 252. Many other authorities will be found collated in section 1784 of Branch’s Ann. Tex. P. C.

We do not agree with appellant’s' contention that the use by the witness of the words, “and told me these things,” was equivalent to saying that appellant told witness what had been related by prosecutrix on the witness stand. Without objection prosecutrix had testified that she told Mrs. Herring “what had happened,” but neither she nor Mrs. Herring were permitted to relate the details of the disclosures. The fact that witness said she gave prosecutrix a “douche” and had her clothing “out there” if counsel wanted to see them are not of sufficient moment to present any serious question.

After prosecutrix went to Mrs. Herring and reported the outrage the latter called Dr. Means, who made an examination of prosecutrix and testified as to the bruises found and the condition of her private parts. He testified that from his experience as a physician he could usually tell from an examination whether an act of intercourse was the first a woman had experienced, and from the fact that he found the hymen ruptured and still bleeding when he examined prosecutrix it was his opinion it was her first act. Objection was urged that this evidence threw no light on the question for solution — that is, whether the act was accomplished by force or by consent — and was prejudicial in that it tended to inflame the mind of the jury. We are inclined to think the evidence admissible under the facts; if not, no prejudicial error in receiving it is shown.

Bill of exception No. 5 recites that upon cross-examination of appellant he had denied using force to effect the act of intercourse with prosecutrix, and that in this connection the district attorney asked the following question: “Now, as a matter of fact, Mr. Myers, when you were asked about this by the district ■ attorney * * * ” — at which point in the question he was interrupted by an objection that any statement made by appellant was while under arrest. This objection was sustained. The district attorney then asked appellant if he did not make a statement to which an objection was also sustained. Appellant insists ■ that the questions themselves were injurious because they necessarily left the impression upon the jury that he had' made a statement in which he admitted using force. We cannot agree that such necessary implication followed. It might be also said that the bill is defective in not certifying as a fact that appellant was under arrest. This appears only as the ground of objection.

Complaint is made in bill No. 6 at the evidence of the witness Jennings as to passing the car in which were appellant and prosecutrix, and as to what he saw and heard there, the objection being that witness could not identify the parties in the car. While prosecutrix did not know the witness Jennings and could not identify him by his face, and the witness likewise did not know appellant or prosecutrix, yet the description of the cars, the dress of prosecutrix, and the details of the occurrence related by the witness leaves no doubt as to the identity of the parties, and to our mind relieves the case of any question as to the propriety of admitting his testimony.

Complaint is urged at the refusal of two requested charges. We think no error is shown in their refusal.. The court gave a full, fair, and complete charge presenting appellant’s side of the case, and gave six special charges which were certainly as favorable to appellant as he could demand and covered the principles contained in the rejected instructions.

Complaint is made of the argument of the, assistant district attorney in several particulars. The most objectionable argument was withdrawn from the jury, the court sustaining appellant’s exception thereto and immediately telling the jury not to consider it. The other matters complained of in the argument we think of not sufficient moment to be regarded seriously.

Bills of exception presenting other questions have been examined, but they present no error, and we think it unnecessary to discuss them.

Eluding no error which in our opinion justifies a reversal, the judgment is affirmed. 
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