
    CATON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    1. Jury (§ 131) — Competency —Examination.
    Accused, after obtaining a statement from each of the veniremen that he could try the case according to the law and the evidence, uninfluenced by any other consideration, was entitled to ask each of them whether they would give him the benefit of the presumption of innocence and the benefit of reasonable doubt throughout the trial.
    [Ed. Note. — Por other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    2. Criminal Law (§ 1091) — Appeal—Bill op Exceptions — Showing Answer, to Excluded Question.
    A bill of exceptions to the exclusion of certain questions in the examination of veniremen, which does not recite what the expected answers were, will not be considered oh appeal.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2S15, 2816, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Witnesses (§ 359) — Impeachment — Character of Witness.
    In a prosecution for rape, the court’s charge in a previous homicide case against the principal witness for the state, which submitted the issue of his insanity, and the verdict of not guilty in that case were inadmissible in connection with other evidence tending to dis•credit the witness.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1161, 1162; Dec. Dig. § 359.]
    4. Rape (§ 43) — Criminal Prosecution — Evidence — Physical Condition.
    In a prosecution for rape on a girl under the age of 15 years, which occurred, if at all, on March 29th, evidence of a physician, as to an examination of prosecutrix between that date and April 3d, which showed that the girl’s private parts had been penetrated frequently, but not recently, and that she had been in the habit _ of either having intercourse with the opposite sex, or her private parts were enlarged from self-abuse, was admissible.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    5. Witnesses (§ 380) — Impeachment—Party Called as Witness by Adversary.
    Where the girl alleged to have been assaulted was called as a witness by defendant, and positively denied all facts tending to establish defendant’s guilt, the state had the right to contradict her as an adverse witness, and by recalling her, for the purpose of laying a predicate for such contradiction, did not make her its own witness.
    [Ed. Note. — For other cases, see Witnesses, Cent Dig. §§ 1210-1219; Dec. Dig. § 380.]
    Appeal from District Court, Karnes County; John M. Green, Judge.
    J. H. Catón was convicted of rape on a girl under 15 years of age, and he appeals.
    Affirmed.
    Williamson & Klingemann, of Karnes City, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This conviction was for rape on a girl under 15 years of age; the evidence showing the girl was the stepdaughter of appellant. The jury awarded him 5 years in the penitentiary.

1. There were quite a number of bills of exception reserved to the rulings of the court on the impaneling of the jury. These various bills embody the same proposition. Another bill shows the same questions were asked of all the jurymen on the venire. It is shown by the language of the bills that after the jurors had answered all the questions from 1 to 14 inclusive, as set out in article 673 of the Code of Criminal Procedure, in addition, each of the veniremen stated that he could go into the jury box and try the case according to law given in charge by the court and the evidence of the witnesses on the stand, uninfluenced by any other consideration. They were then further asked by the defendant as follows:

“The court will charge you that the defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt. If selected as a juror in this ease, can you go into the jury box presuming the defendant to be innocent under the law, and will you let that presumption remain with you throughout the trial of this ease until his guilt is established by legal evidence, beyond a reasonable doubt?”
“Suppose that when the case is finished you believe the defendant guilty, but, judging from the evidence alone, there is a reasonable doubt in your mind as to the guilt or innocence, would you give the defendant the benefit of that doubt and acquit him?”
“The burden of proof is upon the state to prove the defendant guilty beyond a reasonable doubt. Should it fail to do so, would you acquit him?”
“Suppose, when the case is finished, you believe the defendant guilty, but, based upon the evidence alone, there is a reasonable doubt in your mind as to his guilt, would you give the defendant the benefit of that doubt and acquit him?”

The district attorney objected to each question. The court sustained the objection, and the veniremen were not permitted to answer. In the bills, he urges that he was not permitted, under the ruling of the court, to sufficiently inquire into the qualifications of the special veniremen, so as to enable him or the court to determine whether or not said special veniremen were in fact qualified jurors, or to sufficiently inquire into their qualifications to intelligently select such jurors as would be satisfactory to the defendant, and to enable the defendant to exercise his peremptory challenges to the best advantage; and, by reason of not being permitted to have the questions answered, he was unable to test fully the veniremen’s qualifications. We are of opinion that these were legitimate questions. The bill further recites that these questions were asked of each of the special -veniremen, and that none of them were permitted to answer, and that out of said special venire the jury to try appellant was selected.

The trouble with an intelligent solution of appellant’s contention, however, arises from the fact that the bill does not recite or indicate what the jurors would have answered. If the answer had shown that they would have given appellant the benefit of the doubt on all the questions answered, then they would have clearly been proper jurors. If the answer had shown doubt as to the bias or prejudice or conclusion of the jurors, then they might not have been. The bill in this connection recites that all of the questions from 1 to 14, inclusive, of article 673 of White’s Code of Criminal Procedure had been answered to the satisfaction of the court. These answers included the questions asked by appellant in a general way. Taking the answers to the court, the jurors would have been fair, and would have been governed by the law and the testimony. In order to get away from this position of the jurors as manifested in the bill, the bill ought to have recited what were the expected answers, so this court might know whether the answers to the court were correct. As the record shows this matter, we are of opinion we cannot revise it.

2. There are two bills of exception reserved to the ruling of the court in regard to two other jurors. One of them, under the bill, seems to have fully qualified himself under the decisions of this court. In regard to the other juror, there may have been some doubt; but he was excused, and did not sit on the jury.

3. Another bill recites the fact that appellant sought to introduce before the jury the charge of the court in a homicide case against the state’s main witness, which had been previously tried in T»e Witt county. This witness furnished practically the testimony upon which the state obtained this conviction. The name of this witness was Terrill Woods. The charge sought to be introduced, among other things, submitted the issue of insanity to the jury in the trial of said Woods on his case for homicide. Appellant also sought to introduce the verdict of the jury in the homicide case, which found Woods not guilty. We are of opinion this evidence was not admissible. If insanity in that case was an issue, that fact might be shown, along with other facts, to show Woods was of such unsound mind as to render him incompetent to testify, or, if not, then, for the purpose of impairing his credibility or reliability as a witness. The fact that the issue of insanity in the homicide case was submitted by the court on the trial of Woods was sought, evidently to be used in connection with other testimony introduced by the defendant to show that Woods, if not insane, was in such condition that his testimony ought not to be relied upon for the purpose of convicting a man for an infamous crime. Woods was an epileptic, and had been for several years. Of this there was no question. The proper authorities in Karnes county had declared him so to be; and the commissioners’ court of that county had continually made an allowance of a certain amount for his maintenance. The charge, above referred to, was sought to be introduced along with this general line of testimony. That the defendant might have proved the fact that Woods pleaded insanity in the homicide case could have been introduced before the jury for what it was worth; but we are of opinion the charge of the court to a jury in another case would not be legitimate evidence in that connection.

4. Another bill of exceptions recites that one of the physicians made a digital examination of the girl alleged to have been raped; but the time he made it was not definite in his own mind. He stated it was about six months before this trial, and at the request of the grand jury. Taking the recitation of the facts in the bill, we are of opinion this evidence was properly admitted. The rape is alleged to have occurred, and the facts show, if it occurred at all, on March 29th. The indictment was returned the 3d of April. It seems that, while the grand jury was investigating the ease, which was between the 29th of March and the 3d of April, they requested the physician to' make this examination. He did so. The result of this examination shows the girl’s private parts had been penetrated frequently; but he saw no evidence of recent penetration. In fact, his testimony shows that she had been in the habit of either having intercourse with the opposite sex, or her private parts were enlarged from self-abuse. The opinions of the doctors, however, not only this'one, but others, indicate that it was not from self-abuse. This testimony, we think, was admissible.

5. Another bill recites that objection was interposed to the recall of the assaulted girl, Allie David, by the state, for the purpose of laying a predicate for impeachment. This case presents rather a peculiar condition in this respect. Terrill Woods was the state’s witness, who testified that he saw'appellant and his stepdaughter, Allie David, in the act of intercourse; and it was upon his testimony that the conviction was obtained, corroborated by the 'examination of the girl by the physician, which was of very slight importance. The girl, Allie David, was used as a witness by the defendant; and she testified positively and strongly to the fact that she had never had intercourse with appellant, and that the occurrence of which Terrill Woods testified did not in fact occur; that she was not at the time and place Terrill Woods mentioned, and had never at any time had intercourse with appellant. After she had testified, and about the close of the case, the state recalled her, for the purpose of laying a predicate for contradicting her as to some previous statements she had made. Those statements were in conflict with her testimony on the trial of the case. The contention of appellant is that by recalling her the state made her a state’s witness. We do not understand this to be correct. She was an adverse witness to the state, and very decidedly so. The state had the right to contradict her as an adverse witness. It was also shown in the bill that the state’s counsel had ascertained these matters after the girl had testified; and therefore, she was recalled to lay the predicate. Be that as it may, we are of opinion, appellant’s contention is not sound. That the state made her a state’s witness in recalling her for the purpose of laying the predicate to impeach, under the circumstances detailed, is not correct or tenable under the facts stated.

6. It is also urged that the evidence is not sufficient to support the finding of the jury. While the writer would be inclined to agree with this contention, yet the jury believed the evidence. We would hardly feel justified in reversing the judgment for this cause under this condition of the record. I do not care to review the facts.

As the record is presented to us, the errors suggested are not thought to be reversible; and the judgment is ordered to be affirmed.  