
    ROSAMOND v. STATE.
    (No. 9156.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;596(3) — Continuance, based on testimony, sought to be secured and which would only be available to impeach witness, who is to testify, should ordinarily be refused.
    Continuance, based on testimony, sought to be secured and which would only be available to impeach witness, who is to testify, should ordinarily be refused.
    2. Criminal law <&wkey;706 — Question to prosecu-trix held not objectionable, as implying accused had taken her elsewhere and committed similar offense.
    Question to prosecutrix, “after he [meaning accused] had intercourse with you, did he carry you anywhere,” held not objectionable as implying accused had taken prosecutrix somewhere else and committed similar offense upon her.
    3. Criminal law &wkey;»1036(l) — Admission of testimony mot objected to is not ground for reversal.
    Admission of testimony not objected to is not ground for reversal.
    4. Criminal law <S=»686(2) — Permitting state to recall prosecuting witness after state rested is usually in discretion of trial court.
    Permitting state to recall prosecuting witness after state rested is usually matter of discretion with trial court.
    5. Criminal law &wkey;>695i/2 — Asking of questions not error, where court sustained objection to question and. answer when objection was made.
    Asking of questions held not error, where court sustained the objection to the question and answer when the objection was made.
    On Motion for Rehearing.
    6. Rape <&wkey;44i — State not precluded from showing other acts showing familiar association with prosecutrix.
    State was not precluded from showing other acts showing familiarity and association between prosecutrix and accused, but falling short of showing another act of intercourse.
    7. Witnesses <&wkey;>396(3) — Permitting prosecu-trix to explain apparent contradiction held not error.
    Prosecutrix, on direct examination, testified to an unobserved act, and on cross-examination was asked whether on a former trial she had not testified that her brother came along and observed the act, to which she answered in the affirmative, but stated that such incident was not the one testified to by her on the present trial. Held, that it was not error to permit prosecutrix to explain the apparent contradiction.
    8. Witnesses <&wkey;>274(2) — Witness, introduced by defendant in support of general reputation, may be questioned as to having heard things inconsistent with reputation which he was called on to prove.
    A witness, introduced by accused in support of accused’s general good reputation, may be questioned as to whether he had not heard of particular and specific acts of accused which would be inconsistent with the character which the witness was called upon to prove.
    9. Witnesses <&wkey;274(2) — Asking accused’s character witnesses whether they had not heard that accused admitted having taken prosecutrix to hotel, and having spent night there, held not error.
    Asking accused’s character witnesses, who testified as to accused’s good reputation, whether they had not heard that accused admitted having taken prosecutrix to a.hotel and having spent the night there with her, held not error, especially where the court in its charge to jury limited consideration of such testimony to the question of the credibility of character witnesses.
    Commissioners’ Decision.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    J. O. Rosamond was convicted of rape, and he, appeals.
    Affirmed.
    See, also, 97 Tex. Cr. R. 639, 263 S. W. 1067.
    John R. Anthony, of Grand Saline, and Jas. M. Shields, Stanford, Sanders & West, and R. M. Lively, all of Canton, for appellant.
    
      Tom Garrard, State’s Atty., and Grover 0. ■ Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRX, J.

Appellant was convicted in the district court of Van Zandt county for the' offense of rape, and his punishment assessed at confinement in the penitentiary for a term of five years.

Prosecutrix is the niece of the appellant, and at the time of the alleged offense was under the age of consent. She testifies to facts which, if true, are sufficient to show the appellant’s guilt, and we also observe that the record shows that she is corroborated more or less cogently by other witnesses.

By appellant’s first bill of exception he complains of the court’s action in overruling his motion for a new trial, contending that same should have been granted because of newly discovered evidence. We have carefully examined this matter and have concluded that no error is shown.

By bill of exception No. 2, appellant complains at the court’s action in refusing his application for a continuance. This application was made on account of the absence of appellant’s leading counsel, and also on account of the absence of certain witnesses by whom appellant expected to prove that the reputation of prosecutrix for truth and veracity is bad. The court’s explanation of this bill shows that appellant’s leading counsel, at the time of the trial, was in a dying condition and has since the trial departed this life. The record further discloses that capable counsel represented appellant. With reference to the question of the absent witnesses, it is sufficient to say that a continuance sought to secure testimony which would only be available to impeach a witness who, is to testify should ordinarily be refused. See section 324, Branch’s P. C., for many authorities sustaining this proposition.

Complaint is made by bill No. 4 because the county attorney ashed prosecutrix this question “after he (meaning the defendant) had intercourse with you, did he carry you anywhere?” The objection stated to this question is that it implies that the defendant had taken the prosecutrix somewhere else and committed a similar offense upon her. We do not care to carry the doctrine which prohibits proof of other offenses to any such extreme. The prosecutrix in this case is shown by the undisputed testimony to be the niece of the appellant, and the mere asking of the question of whether or not the defendant had taken her anywhere does not to our minds imply that he had taken her somewhere for immoral purposes. Besides the court’s qualification shows that the witness had answered before any objection was made to it, and when objection was made, the court sustained the objection.

Bill No. 5 complains that after the prose-cutrix had testified on direct examination, the defendant asked her the following question on cross-examination: “Will ask you if you did not testify on a former trial of this case that, on or about August 15, 1921, Odom Rosamond came in and caught you and the defendant in the act of intercourse?” and the witness answered, “Xes, sir; but that was not the time. * * * It was not this time that I testified about before when I said Odom came in the house and caught us.” It seems to be appellant’s contention that this was a voluntary statement by the witness of other similar offenses committed by the appellant against prosecutrix. We cannot agree with him. This was a legitimate explanation of •an answer which unexplained' would have reflected on the witness.

By bill of exception No. 6, complaint is made because the state asked Odom Rosamond .about being at work on a, well near the house where this offense, is alleged to have happened in the summer of 1921, and about going to the house to get some water and a rag to tie up- a wounded finger, and about seeing appellant and prosecutrix in a compromising position at that time. Appellant’s objection to this testimony is, first, that on examination in chief the prosecutrix did not mention the act alleged to have been witnessed by Odom Rosamond; second, that in view of the whole testimony' of the prosecutrix the introduction of the witness Odom Rosamond touching a different alleged act of intercourse from the one set upi by the prosecutrix could serve no relevant or material purpose; third, that the said objectionable testimony of Odom Rosamond was irrelevant and immaterial to any issue in the case. There were various other objections urged to the introduction of this testimony. The court qualifies this bill by stating that the defendant did not object to this testimony of Odom Rosamond. Under this explanation, there was of course no error shown by the bill.

By bill No. 8, complaint is made because the court permitted the state, after it had rested, to recall the prosecuting witness Thelma Rosamond. This is usually a matter of discretion with the trial court, and there is no error shown in the court’s action in connection with this matter, especially in view of his qualification of this bill.

What has just been said also disposes of appellant’s bills Nos. 9 and 10.

Bill No. 11 complains at the action of the court in permitting the staters counsel to ask appellant’s character witnesses, on cross-examination, if they had not heard that, prior to the indictment in this case, defendant admitted that he carried prosecutrix to Terrell, and there slept with her in a hotel. This bill of exception is explained by the court as follows:

“The state asked the witness if defendant took her any place and she answered, ‘Xes; to Terrell.’ The defendant objected, and the court sustained Ms objection, otherwise the bill is correct.”

We are not prepared to say that this was not a proper cross-examination of appellant’s witness. The bill of exceptions does not show that defendant had not admitted that he had taken the girl to Terrell, and there slept with her at a hotel. In fact the testimony was not objected to oh the ground that no proper predicate had been laid for the asking of this question, but his objections went merely to the fact that the time of the Terrell trip was not fixed, that it was immaterial, and that it was hearsay, and that it was inflammatory, etc. We cannot do otherwise, under the circumstances, than hold that no error is shown by this bill;

By bill No. 12, complaint is made at the action of the court in permitting the state’s counsel to ask appellant’s character witnesses certain questions. The bill shows that in every instance, the court sustained the objection to the question and answer when it was made. Under this condition of the record, no error is shown.

The argument of the county attorney, as shown by bill No. 13, was proper under the explanation the court makes of the bill.

We have carefully considered each of appellant’s assignments in this case, and have reached the conclusion that no error is shown in either of them. Iti occurs to us that he has enjoyed a fair and impartial trial in this ease, and, the evidence being sufficient, it is our opinion that the judgment should in all things be affirmed.

PER OURIAM. 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.

HAWKINS, J.

Appellant’s motion for rehearing questions our former opinion in the disposition of the points raised by bills of exception 4, 5, and 11. The first bill referred to shows that the court refused to withdraw from the jury prosecutrix’s statement that appellant took her to Terrell. We think appellant’s contention that the statement carried an implication of another act of intercourse is not sound. At most it only showed association with prosecutrix subsequent to the act of carnal knowledge shown by the state in developing its case in chief. We are not aware of any authority which precludes the state from proving other acts if showing familiarity and association between the parties but falling sliort of showing another act of intercourse. Battles v. State, 53 Tex. Cr. R. 202, 109 S. W. 195; Henard V. State, 47 Tex. Cr. R. 168, 82 S. W. 655, 11 Ann. Cas. 670. Other authorities illustrating the rule are collated under subdivision 4, § 1788, Branch’s Ann. P. C. The ruling of the court in this particular must be appraised by the condition existing at the time made and cannot be' carried forward and connected with the matters complained of in bill No. 11 which occurred long subsequent in the development of the trial.

As we understand the record, the matter complained of in bill No. 5 arose in this wise: Prosecutrix had testified on direct examination to only one act of intercourse. On cross-examination she said when this act occurred no one was present but her and appellant, and that no one else was near at the time. She was then further asked on cross-examination if she had not testified on a former trial that her brother caught them in the act. In response to the latter question, she admitted that she had so testified, but explained the apparent ' contradiction by stating that the time her brother caught them was not the time testified to by her on the present trial. This evidence was drawn out by appellant, not the state. To have restricted prosecutrix merely to an admission that she had said on a former trial that her brother caught them (which appellant contends should have been done), without ..permitting her to explain the apparent contradiction, would have been manifestly unfair to the witness. It is not every reference to, or proof of, more than one act of intercourse which is denounced; the rule being that ordinarily the state should not, in developing its case in the first instance, make proof of but one such act. As the ease develops, conditions may arise which make it permissible and proper to show other acts. The present case in the particular mentioned furnishes such an instance. See Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Rosamond v. State, 94 Tex. Cr. R. 8, 249 S. W. 468; Bradshaw v. State, 82 Tex. Cr. R. 351, 198 S. W. 942; Rosamond v. State, 97 Tex. Cr. R. 569, 263 S. W. 297.

Bill of exception No. 11 recites that a number of named witnesses were called by appellant and testified to his good reputation as a peaceable, law-abiding citizen and gentleman in the community where he resided. The complaint is that, upon cross-examination of these character witnesses, the state asked if they had not heard that appellant admitted taking prosecutrix to Terrell and there sleeping with her at the hotel. The bill seems to be directed at what is supposed to have been the improper asking of the question. It does not set out the answer of any witness in reply thereto. In the charge, wqnotice a paragraph which by name refers to certain of the same witnesses mentioned in the bill, and instructs the jury that their evidence on cross-examination to the effect that they had heard that appellant admitted he had gone to Terrell and spent the night in a hotel with prosecutrix was admitted only for the purpose of aiding the jury in passing upon the credit to be given to the testimony of said witnesses and were instructed specifically that they could consider it for no other purpose whatsoever. We observe nothing in the present case which would make inapplicable the rule that when a defendant has put in issue his general reputation that witnesses introduced by him to support it may not, for the purpose of throwing light upon the weight to be given their testimony, be asked if they had not heard of particular and specific acts upon the part of appellant which would be inconsistent with the character which the witnesses were called to prove. Underhill on Crim. Evidence, §§ 81, 82; Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484; Wright v. State, 98 Tex. Cr. R. 513, 266 S. W. 783; Thomas v. State, 95 Tex. Cr. R. 133, 252 S. W. 1062. We are not prepared to say the court was in error in permitting the question complained of to be asked. In view of the fact that the court pertinently limited the effect of the testimony elicited thereby, we are of opinion bill No. 11 shows no error.

The motion for rehearing is overruled. 
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