
    TINKER v. STATE.
    (No. 7269.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1923.
    On Rehearing, June 27, 1923.)
    1. Rape <§=>27 — Indictment for statutory rape not bad in alleging female’s age at 15 years.
    Indictment for statutory rape is not bad because alleging the female to be under 15 years of age when the age of consent was 18 years.
    2. Grand jury <§=>32 — Presence of sheriff during examination of witness not forbidden.
    Presence with the grand jury of a sheriff while a witness was being questioned was not within the forbidden presence of another while the grand jury was deliberating on the finding of an indictment.
    3. Criminal law <§=>622(2) — Persons indicted for different offenses ■ not within statute as to severance.
    Code Cr. Proe. art. 726, as to severance where several are jointly prosecuted, has no application to persons indicted for rape, one of one female, the other of another female.
    4. Criminal law <§=>621(2) — Persons indicted for different offenses not within the statute as to priority of trial; “transaction.”
    Code Cr. Proe. art. 727, as to priority of trial where two are prosecuted for an offense growing out of the same “transaction,” has no application where one is charged with rape of SI., the other with rape of N., though at the same time and place, but applies only wh’ere the parties are indicted for the same offense.
    (Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transaction.]
    5. Criminal law <§=>627'/2 — Error held not presented by refusal to compel state’s attorney to furnish written statements of witness.
    Refusal of motion to compel state’s attorney to furnish all written statements made by any witness in the case presents no error where such statements were not before the jury.
    6. Witnesses <§=>40 (2) — No abuse of discretion in holding 13 year old girl competent.
    Holding á girl 13 years old a competent witness in view of her preliminary examination held not an abuse of trial court’s discretion.
    7. Criminal law <§=>720(1) — No error in remark of staters attorney on objection by defendant.
    There was no error in remark of state’s attorney on objection by defendant during state’s examination, of witness “All right; if. he thinks it is damaging I will not insist;” the trial court qualifying the bill of exceptions by statement that the remark was not mfftle in a sneering and suggestive -manner, as stated in the bill.
    8. Criminal law <§=>369(8) — Matter not inadmissible because St would constitute an in- . dependent crime.
    That the transportation of intoxicating liquors would constitute an independent crime does per se make evidence thereof inadmissible in developing the crime of statutory rape.
    9. Witnesses <⅞=337(5) — To affect credibility • defendant may be asked as to indictment for felony.
    To affect credibility of defendant as a witness testifying for himself, the state could ask him if he was under indictment for a felony.
    On Rehearing.
    10. Criminal law <§=> 1169(1) — Admission of . testimony after interview of state’s attorney with witnesses under rule held prejudicial error. '
    . In view of the nature of the .testimony and that previously given, admission ‘ of testimony of prosecutrix and her sister on a prosecution for statutory rape, after an interview between them while together and the state’s attorney, in violation of the rule under which they had been placed, held prejudicial error.
    Appeal from District Court, Cass County; Hugh Carney, Judge..
    Ennis Tinker was convicted of statutory-rape, and appeals.
    Reversed and remanded.
    C. R. Newland, of Rinden, and I. N. Williams, of Mt. Pleasant, for appellant.
    ' R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Cass county of the offense of rape, and his punishment fixed at confinement in the penitentiary for a period of 20 years.

The record herein shows without dispute that appellant and one Adams went with two little girls from Mt. Pleasant, in Cass county, Tex., in a car to Texarkana, Tex. They left Mt. Pleasant late one afternoon. Some time in the night they reached Atlanta, in Cass county, and went to a hotel and spent the night. Appellant registered the party as “Adams, son and daughters.” They called for a room- with two beds, into which the entire party went, and remained till morning. Appellant contends that he and Adams slept in one bed and that the two girls occupied the other. He is'charged with rape upon the younger of said girls, who, according- to the state’s theory, was at that time but 12 years of age. She testified that she'and her sister were under the influence of liquor given them by appellant and Adams, and that she went to bed with appellant, having on both her outer and underclothes. She said she was wakened by his hugging her up during the night, and that thereafter he had two acts of intercourse with her before morning. She said that when he woke her she discovered that he had removed her drawers. She further testified that when she got up in the morning she bathed her private parts, and there was blood and other matter upon her limbs. The other sister testified that she saw the alleged .injured girl bathing her private parts the next morning, and saw blood on her limbs. The landlady of the hotel testified that she found in the room the next morning after the party had gone the drawers of a young girl. Physicians 'who examined the girls at Tex-arkana testified that they found the private parts of the alleged injured girl much enlarged, and that indications pointed to the fact that she was both capable of indulging in sexual intercourse with a man and that she had been penetrated at some time in the past, though said private parts did not indicate recent violent penetration.

Appellant moved to quash the indictment upon the ground that it charged carnal knowledge of a female under the age of 15 years, and that the age of consent as it now is, is 18 years. This question has been decided against, appellant’s contention. Young v. State, 89 Tex. Cr. R. 230, 230 S. W. 414.

Appellant also moved to quash the indictment upon the ground that persons not authorized by law were present with the grand jury when it was deliberating upon the finding of the instant indictment. It was shown and admitted that because of the timidity and,youth of the alleged injured female she was accompanied into the grand jury room by the sheriff of the county in which she lived, who was present while she was being questioned. It was also shown without contradiction that no one was present with the grand jury when they were deliberating upon the question of the finding of the indictment herein. This court has held, in regard to the presence of persons acting in various capacities during the investigation of crime, that such presence, extending no further than while testimony was being had before the grand jury, would not come within the .forbiddance of such presence while the said grand jury was deliberating upon the finding of the indictment. McElroy v. State, 49 Tex. Cr. R. 604, 95 S. W. 539; Moody v. State, 57 Tex. Cr. R. 76, 121 S. W. 1117; Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194. See other cases cited in Branch’s Ann. P. C. § 486. Inasmuch as the presence of any person other than the grand jurors at the time said body was deliberating upon the return of the indictment herein, is negatived by the facts shown, the contention is without merit.

Appellant moved for a severance, and that Adams be first placed upon trial. Adams was indicted for rape upon the sister of the alleged injured female herein. We do not deem this to bring the case within the comprehension of "our statutes in regard to severance. It is provided by article 726, C. C. P., that, when two or more defendants are jointly prosecuted, they may sever; it is also provided by article 727, Id., that, where two or more defendants are prosecuted for an offense growing out of the same transaction, either may file his affidavit that the evidence of the other party or parties is material for his defense, etc., and the person whose evidence is thus desired may first be tried. It seems to be held that by the use of the term “transaction” in the statute above referred to is meant that the parties must be indicted for the same offense. Ray v. State, 43 Tex. Cr. R. 234, 64 S. W. 1057. The subject has recently been discussed by this court in Cotton v. State (No. 6503) 244 S. W. 1027, opinion delivered November 15. 1922, which holds adversely to appellant’s contention. It would seem beyond question that, appellant being charged with rape upon Maggie Ray and Adams with rape upon Neoma Ray, said parties were not charged with the same offense.

It is urged that the court should have granted a motion made by appellant to compel the state’s attorney to furnish to the defendant all written statements made by any witness in the case which might then be in possession of -said attorney, as well as a list of all the witnesses expected to be used by the state, 'the written statements were not before the jury, and we are of opinion that the refusal of such motion presents no error.

It is also urged that the witness Neo-ma Ray was shown by the preliininary examination to be incompetent. Said witness stated as follows upon said preliminary questioning:

“I understand what I am doing now; I am just swearing against old man Adams, is all I know, and that means that I am going to tell the truth. I know the difference between a story and the truth. I can tell a story and help him out, and tell the truth and it won’t. I know which is right and which is wrong. It is right to tell the truth.”

This witness was shown to be about 13 years old at the time of the trial, and we deem it no abuse of the discretion confided in the trial court to hold her .competent as a witness.

It is shown by a bill of exceptions that while Neoma Ray was testifying the attorney for appellant interposed an objection, in response to which, and before the court ruled, the state’s attorney remarked: “All right; if he thinks it is damaging I will not insist.” Appellant’s objection to this seems to be based upon the proposition that said remark was In a sneering and suggestive way, but tbe qualification of tbe trial court consists of a statement that tbe manner of tbe state’s attorney was not as stated in said bill. We do not perceive any error in the matter set out in said bill as so qualified.

Upon the trial of tbe case tbe rule was invoked. Said trial extended over some days. The witness Neoma Ray was called back to tbe witness stand after having testified in chief, and when so recalled gave in testimony tbe fact that at Atlanta, on the morning after the night spent in the room with said two men, she saw her sister, Maggie, the alleged injured party in the instant case, wash blood from her legs and private parts. Cross-examining this witness, appellant’s counsel developed the fact that during the trial the district attorney, accompanied bjy the sheriff, came to the jail where witness and her sister, Maggie, were staying •during the trial, and talked to them about their testimony, said conversation being had with both girls at the same time. The qualification of the trial court to this bill of exceptions contained the statement that it is his custom to allow the district attorney to talk to witnesses under the rule in the presence of the sheriff, and that, this being done, the trial court was of opinion that no such serious violation of the rule was shown as would justify him in rejecting the testimony of said witness. These matters are largely confided to the discretion of trial courts; but unless upon complaint thereof it is made to appear evident to us that there is no likelihood of injury to him arising from an abuse of such discretion, this court would not feel inclined to direct a reversal based upon such contention. We do not believe appellant brings himself within this rule. What we have just said also applies to the apellant’s further objection to testimony from the witness Maggie Ray, who was introduced by the state, and testified over án objection made by appellant based on the fact that she had discussed the case with the district attorney in jail in the presence of Neoma Raj''.

There is a further objection to testimony of the fact that after leaving Mt. Pleasant with said two children the two men involved in the transaction obtained whisky which they put in the car and carried with them. The fact that the development of a given transaction relied upon by the state as constituting a crime brings out other facts which of themselves constitute an independent crime does not por se make the evidence of such independent crime inadmissible. The state relied upon the proposition that these two men started out together to debauch these children, and that as a part of and in furtherance of said purpose they procured and gave to said children intoxicating liquor. The fact that the transporting of such liquor would constitute an independent crime would not seem to make it inadmissible in the development of the case against appellant for rape.

We deem it competent for the state to ask appellant while on the witness stand testifying in his own behalf if he was not under indictment for a felony. Such testimony has always been held by us admissible as affecting the credibility of the defendant as a witness.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Rehearing.

MORROW, P. 3.

We are urged to reconsider the ruling to the effect that there was no harmful error in receiving the testimony of the prosecutrix, Maggie Ray, and her sister, Neoma Ray, after they had conferred with each other and with the district attorney and others in the presence of each other. We understand from the two bills of exception on the subject that in opening the case Neoma Ray was introduced by the state, and at the close of her testimony the court, took recess until the following morning. Before the recess she testified, in substance, that she and her sister, Maggie, together with Adams and the appellant, traveled in an automobile from Mt. Pleasant to Texarkana, stopping over night at Linden or Atlanta; that she was given whisky by Adams; that they all occupied the same room in the hotel. This quotation is taken from her testimony:

“I can’t tell you whether it was Linden or Atlanta we come through; we stayed all night at Linden or Atlanta, one, some town where we stayed all night. I don’t remember whether we stayed all night in a hotel or in a car on the road. I was in a rooming house when I woke up the next morning. When I woke up the next morning, Adams and Maggie and En-nis Tinker was in the room with me. I don’t remember what time it was when I got up the next morning; along about 7:30, I reckon; that is what Maggie told me. Then we went to Texarkana in a car, Maggie and Adams and Ennis Tinker and me. Maggie woke me up that morning. I was in bed when she woke me up, I reckon; in bed with Adams. Maggie had slept there in that house that night,’ I reckon. She got up a little before I did. I saw her when she got out. I was in bed with Adams, and then the four of us got up and went to Texarkana.”

On tbe opening of court on tbe following morning she gave this further testimony:

“That in Atlanta, before she and her bister, Maggie Ray, and defendant Tinker, and Adams started on their way to Texarkana, that she saw that very morning her sister, Maggie Ray, wash off of her legs and private parts some blood; that she saw blood on Maggie’s legs; that Maggie washed that morning after spending the night in Atlanta.”

Upon her giving this additional testimony, counsel for appellant developed this testimony:

“On cross-examination of this witness, when asked if that was the first time she ever told that, the witness replied, T told it to the district attorney last night.’ Defendant’s counsel replied, ‘You told it last night?’ and the witness answered, ‘My sister did.’ Defendant’s counsel then asked, ‘You heard her tell it?’ and the witness answered, ‘Yes, sir.’ And on further questioning the witness stated that the district attorney and the county attorney and the sheriff were present, and questioned her and her sister, Maggie Ray, down at the jail last night, and questioned them and talked to them while they were together, and also that Sheriff Reeves, of Titus county, was present, but retracted the statement as to Reeves being pres-' ent, and stated he was on the front porch.”

A motion to exclude the supplemental testimony was made on the ground that the violation of the rule disqualified the witness. At the beginning of the trial the rule was' demanded by state’s counsel. Neoma Ray and Maggie Ray were witnesses. They -were instructed by the court that they were’to engage in no discussion of the facts of the case except with the attorneys, and then only in the presence of an officer, and not within the hearing of each, other.

This is shovra by the bill of exceptions: The objection was overruled, and Maggie Ray was called by the state, and, over appellant’s objection that she had become disqualified by the violation of the rule, gave this testimony:

“I reckon I went to bed with Tinker; I was in'bed with him is why I reckon I did. My dress wasn’t off, but my shoes and stockings was. I don’t know who pulled them off. I had on a waist and drawers. Something occurred to me there that night. I waked up during the night; Tinker woke me up. He was hugging me up, and he had his hands down there on my private parts. My drawers were off then. Tinker pulled them off. I know he pulled them off after we went to bed. He woke me up, and had his hands on my private parts. When I said he hugged me up to him, I mean my face to his face. I know what is meant by my private parts. I know what is meant by the private organs of a man. Tinker put his private organ in mine. He penetrated my private organ with his. He did me that way twice that night. I reckon my sister was over there with Adams. When I got up next morning she was in bed with Adams. After I got up the next morning I went over there and woke my sister up. Then I bathed my private person, and there was blood and sticky stuff on my private parts, and I bathed. We stayed all night in Atlanta. I don’t know whether the folks where we stayed had gotten up before we left or not. We went ⅜0 Texarkana when we left there next morning, and when we got there went to a place and ate breakfast.”

The date of the alleged offense was March 20, 1922. The state’s evidence was sufficient to show that both the prosecutrix, Maggie Ray, and her sister, Neoma Ray, were at the time mentioned under the age of 15 years. This, however, was controverted. The witnesses for the appellant testified to facts indicating that both of the girls were over the age of 15 years The mother was dead, and the father was in the penitentiary.

Appellant testified in detail, and denied that he had had intercourse with either of the girls. According to his testimony, hé and Adams, with the consent of the father of the girls took them from Mt. Pleasant to Tex-arkana, and on the way they stopped at Atlanta and spent the night. All occupied the same room. The girls slept in one bed and the men in the other.

The girls were separately interrogated by the county attorney in Texarkana on the morning of their arrival there. In this interview both made declarations coinciding with appellant’s testimony. The county attorney said that Maggie Ray made contradictory statements but said that she denied throughout that Tinker had had intercourse with her or attempted to do so. Subsequently the girls were taken before ¿ justice of the peace at Mt. Pleasant, and in an investigation conducted there the prosecutrix denied categoi*-ically that she had had intercourse with the appellant or with Adams. During this interview the county attorney and the witness Thompson were present. She persisted in her denial of improper relations with the appellant and Adams, but said that her brother, Who had been sent to the reformatory, had had intercourse with her; also other boys. The father, it seems, had been sent to-the penitentiary for murder, and had been on parole, but the parole had been revoked. Thompson, who was present at this interview, gave testimony in accord with that of the justice of the peace touching the denial of the prosecutrix of the alleged fact that the appellant had had intercourse with her.

Neoma Ray, the sister of the prosecutrix, admitted on cross-examination, that she, in these various interviews, had denied the facts relied upon to establish the offense. They were both later examined by another justice of the peace under oath, and the prosecutrix denied the commission of the offense by the appellant. Her sister did likewise. Similar statements were made by them on various other occasions, notably, to the witness Keen-ey, a lawyer at Texarkana. In this conversation, she said that she and her sister went to bed together, but when she woke up in the morning, she was in bed with Tinker and her sister in bed with Adams. To Newland, another attorney, she told that she and her sister went to bed together and also said that she had had intercourse one time, and later said that she did not know whether she did or not; that they were in bed together. She made a similar statement to the witness Williams, also an attorney. Several witnesses who had known the girls testified to facts showing their ages to be above 15 years. Among these was the witness Honea,

The doctor who examined the girl on the following day testified, in substance, that the examination revealed the fact that the girl had had intercourse with some man, but that it was not recent; that is, not within two or three days prior to the examination. There was no evidence of force having been used. It was possible that a few hours antecedent to the examination the girl might have had intercourse with a man with an unusually small organ; that her organ was unusually large. The doctor further testified that if intercourse had taken place at the time testified to by the prosecutrix he would have been able to detect it. However, on cross-examin•ation, he said that if the organ had been •washed after the intercourse his ability to •detect it was doubtful. At the time of the examination the prosecutrix told the doctor that she had not had intercourse with any one, but that the condition of her organ was due to her “playing with it.”

The landlady in the hotel at Atlanta cleaned the room the next morning after it was occupied by appellant and Adams and the two girls She found no stains Of any kind on the beds, but found a pair of children’s pants in the room.

It is to be observed that the evidence was conflicting at every point. Touching the age of the girls, there was evidence, both direct and circumstantial, to the effect that they were over and that they were under the age -of 15 years. The same is true with reference to their previous chastity, and of the happenings on the journey from Mt. Pleasant to Tex-arkana. This latter is notably true, due to the numerous denials made by both of the girls under oath in the several investigations •that were made antecedent to the present trial and of the examination of the prosecu-trix by the physician. Both this court and the Supreme Court have frequently taken .note of the necessity for careful scrutiny of the evidence and manner of trial in cases of this character. In the case of Davis v. State, 42 Tex. 229, it is said:

“The instruction -of the court, to the extent to which it went, is unquestionably strictly accurate and correct. In view, however, of the nature of the ease, the passion and feeling, if not prejudice, which such a charge as that preferred in the indictment is calculated to arouse, and the character of the essential question up■on which its proper determination evidently turned, and meager, indefinite,’ and, to some extent, at least, unsatisfactory, if not contradictory evidence, from which the conclusion of the jury was to be drawn, we cannot but think the charge of the court was neither so full .nor perspicuous in directing the attention of the jury to the real issue in the case as it might and should have been.”

And from the opinion of Judge Willson, speaking for this court in Gazley v. State, 17 Tex. App. 277, we quote:

“And there may he a conviction for this offense even upon the uncorroborated testimony of the injured female, although she he a child under the age of ten years. 2 Bish. Or. Daw, § 968; 1 Russ, on Crimes (9th Ed.) 931. But all the authorities agree, and especially in a case where the injured female is a young child, that this is.a crime requiring special scrutiny by. the jury, and a careful weighing ,of the evidence, with all remote and near circumstances and probabilities, in cases where the testimony of the injured female is unconfirmed by other witnesses. And it has been well said that ‘it should be the care of the prosecuting officer, in every case of this sort, to seek carefully for circumstantial evidence tending to confirm the main witness.’ ”

This view of the court has been given expression in eases holding the evidence insufficient, as was done in Gazley’s Case, supra. See, also, Montresser v. State, 19 Tex. App. 281; Kee v. State (Tex. Cr. App.) 65 S. W. 517; Adkins v. State (Tex. Cr App.) 65 S. W. 925; Donoghue v. State (Tex. Cr. App.) 79 S. W. 309; Dusek v. State, 48 Tex. Cr. R. 519, 89 S. W. 271; Alcorn v. State (Tex. Cr. App.) 94 S. W. 468; Logan v. State, 66 Tex. Cr. R. 506, 148 S. W. 713; Edmondson v. State, 68 Tex. Cr. R. 113, 150 S. W. 917; Draper v. State (Tex. Cr. App.) 57 S. W. 655; Elam v. State (Tex. Cr. App.) 20 S. W. 710; Blair v. State (Tex. Cr. App.) 56 S. W. 622; Duckworth v. State, 42 Tex. Cr. R. 75, 57 S. W. 665; Galaviz v. State, 82 Tex. Cr. R. 377, 198 S. W. 947; Smith v. State, 86 Tex. Cr. R. 455, 217 S. W. 156. This has also been emphasized in passing upon inflammatory arguments and the manner of conducting the trial, as in Venable v. State, 84 Tex. Cr. R. 354, 207 S. W. 520; also to the abuse of discretion with reference to enforcing the rule touching the separation of witnesses. Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905.

Our statute concerning the separation of witnesses by placing them under the rule (article 719, O. O. P.) has been the subject of much discussion in the. reports, and, generally speaking, the holding is that the discretion of the trial court with reference to enforcing the rule is a broad one, not to be revised on appeal except in cases of abuse, but that it should not be substantially abridged by any arbitrary action. See cases listed in Vernon’s Tex. Crim. Stat. vol. 2, p. 399; also Bishop v. State, 81 Tex. Cr. R. 97, 194 S. W. 389.

In the case of Welhousen v. State, 30 Tex. Cr. App. 626, 18 S. W. 300, this court entered a reversal because the trial court admitted m evidence the testimony of a witness who had violated the rule with the connivance of the deputy sheriff. From the decision, this is quoted:

“That these provisions of the law were most flagrantly violated cannot be questioned, and violated not only by the witnesses, but by the chief deputy sheriff. While it is true that the trial judge is invested with a wide discretion in all matters relating to this procedure, and that such discretion will not be revised on appeal unless it has been abused, the right to have the witnesses under the rule should not be denied or substantially abridged at the arbitrary discretion of the judge.”

An example is also found in the case of Heath v. State, 7 Tex. App. 464, from which we quote:

“While the law invests a large discretion in trial judges as to the examination of witnesses and the enforcement of the rule, when the same has been requested by either party, yet this discretion is not arbitrary, nor is the statute giving the right merely directory and to be disregarded at pleasure. * * * ‘The right to enforce the rule is a right given by law, and it should neither be denied nor substantially abridged at the arbitrary discretion of the presiding judge.’ Being a right guaranteed by law, a defendant should not, after a request for its enforcement, be deprived of its benefit, unless it should clearly appear that no possible injury could result to him from its relaxation.”

The abuse of discretion in excluding or receiving the testimony of a witness who has violated the rule is a matter of difficulty, subject to some contrariety of opinion, and obviously determinable upon the facts of each case. A witness may be punished for violating the rule, but, generally speaking, the conduct of the witness ought not to deprive the party calling him of the benefit of his testimony. To do so is to punish the party who is not at fault, and not the witness who disobeyed the court. See Bishop’s New Crim. Proc. vol. 2, p. 1191. The reason for this rule does not apply, nor does the rule operate in favor of one who has brought about, connived at, or participated in the disobedience of the witness.

. It is said by the Supreme Court of Missouri in State v. Gesell, 124 Mo. 536, 27 S. W. 1101, that—

“If the party who desires the testimony of the. disobedient witness, has ‘participated in his disobedience’ * * * or has been guilty of ‘connivance’ at the fault of the witness * * * that is to say has been guilty of ‘voluntary oversight’ or ‘passive consent’ * * * while the witness by his presence was violating the rule, all authorities agree he should not be allowed to testify.”

gee, also, Jackson v. State, 14 Ind. 327; Hubbard v. Hubbard, 7 Ore. 42; Kelly v. Atkins, 14 Colo. App. 208, 59 Pac. 841; Murray v. Allerton, 3 Neb. (Unof.) 291, 91 N. W. 518. The opinion of this Court in Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300, quoted above, is to the same effect.

In the case in hand the state relied upon the testimony of the prosecutrix and her sister. They were placed under the rule at the request of the state. There was much conflict in the testimony, as indicated, and many contradictory statements by both of the eyewitnesses. Appellant denied the offense. The doctor witness testified that his examination revealed no evidence of recent intercourse with the prosecutrix; that, if the alleged act of intercourse was the first in the experience of the girl, it was unlikely that it could have been accomplished without pain or bloodshed. The linens upon the beds were shown by the state’s witnesses without dispute to bear no blood stain. The doctor based his opinion partly on the absence of any secretion or semen, but stated that, if the organ has been washed after the intercourse, this would detract from the certainty of his opinion upon that phase of his testimony. Before the recess of court the witness Neoma Ray, upon her complete examination, gave no. testimony to the effect that the organ had been washed, and there was no evidence of blood disclosed. The witness Maggie Ray, the prosecutrix, did not testify until after recess. During the recess both of the witnesses— Neoma and Maggie Ray — were examined in' the presence of each other, and, as stated in one of the bills, the whole case was gone over by the witnesses in company with each other and in the présence Of the district attorney, the county attorney, and, according to some of the testimony, in the presence of the sheriff. It can hardly be questioned that the interview with the two witnesses in the presence of each other touching the details of the case and their respective testimony was a violation of the rule and the instruction of the court that they should be kept separated, and should talk to no one save the attorneys, and not within the hearing of any other witnesses. After this interview, in which the state’s attorney participated, the witness Neoma Ray was recalled, and testified to-new, pertinent, and damaging facts supporting the state’s case, corroborating the prose-cutrix, and breaking down the defense. This-the court refused to exclude upon the motion of the appellant, and permitted the calling of Maggie Ray, who corroborated her sister, who gave testimony which, if believed, strongly supported the state’s case, and tended to-minimize the testimony of the doctor, in that he said that the washing of the parts would have detracted from the value of his opinion, and that the presence of blood would have done likewise. Previous to this transgression, of the rule there was no testimony of blood, no testimony of washing, notwithstanding the state had developed its case through the testimony of the witness Neoma Ray. The court in qualifying the bill said that it was his-custom to allow the district attorney to talk to witnesses under the rule in the presence of the sheriff;, and that in the instant case the court was of the opinion that the departure was not harmful to the appellant. There is no suggestion in the qualification that the rule was not violated, nor that the officer of the court had not participated by talking to the two witnesses in the presence of .each other; nor do we find any. basis for the opinion that no injury resulted. Doubtless the prosecuting officer was prompted by good motives, but his zeal, in our judgment, led him beyond the proprieties. The testimony which came' after the conference in violation of the rule was, in our judgment, important. It had not previously come to light, so far as the record reveals. On the contrary, the opposite is indicated. That it was calculated to injure the appellant is manifest. The importance of the matter was not brought pertinently to the attention of this court at the time the original opinion was written, and it was then assumed that the act was merely one within the discretion of the court. However, upon a re-examination of the record and a more mature consideration of the matter, we are of the opinion that the procedure was not conducive to a fair trial, and that, in view of the verdict assessing practically a life sentence against the appellant, a new trial should have been accorded him. For this reason the affirmance heretofore entered should be set aside, the motion for rehearing granted, the judgment of the trial court reversed, and the cause remanded.

It is so ordered. 
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