
    HAGOOD v. STATE.
    (No. 10653.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Denied April 13. 1927.
    
      1. Criminal law i&wkey;>l 169(1) — Rape <&wkey;44— Prosecutrix’s sister’s testimony that defendant visited her but once, and that prosecutrix never went with any boy before alleged statutory rape, held admissible, or harmless.
    Admission of prosecutrix’s sister’s testimony that defendant had visited her-but once, and that prosecutrix had never gone with any boy, before alleged rape, held not ground for reversal. Evidence of witness’ relations to prosecu-trix and defendant being admissible, where involving no crime or discredit, and no harm resulting if inquiry related to immaterial matter.
    2. Criminal law 364(2) — Defendant’s statements immediately before statutory rape held admissible as res gestee, though referring to his marriage.
    In statutory rape trial, defendant’s statements immediately before commission of offense held admissible as res gestas, though referring to fact that he had been previously married.
    3. Criminal law &wkey;>H7l(3) — District attorney’s remark in statutory rape trial that pros-ecutrix’s family Bible would be inadmissible, held not ground for reversal.
    District attorney’s remark, when prosecu-trix testified in trial for statutory rape, that date of her birth had been entered in family Bible on leaf subsequently torn out, that Bible, if presented, would not be admissible in evidence, held not ground for reversal.
    4. Criminal law <&wkey;722(2)— Question to defendant in statutory rape trial, “You are a very virtuous young man, aren’t you?” held not error.
    In statutory rape trial, question to defendant on cross-examination, “You are a very virtuous young man, aren’t you?” held not error; answer not being shown.
    5. Criminal law <&wkey;380 — Defendant’s testimony in rape trial as to having lived with his wife held admissible, in view of evidence of his good reputation.
    Where defendant introduced testimony in rape trial as to his good reputation for virtue and chastity, refusal to exclude his testimony that he lived with his wife a while in answer to question on cross-examination as to whom he had lived with besides man with whom he testified to having resided, held not error; answer being responsive to question.
    6. Criminal law &wkey;M 169(2) — Admitting defendant’s testimony in rape trial as to having lived with his wife field immaterial, in view of prosecutrix’s testimony that he said he had been married.
    Refusal to exclude defendant’s answer to question on cross-examination in rape trial, as to whom he had lived with besides man with whom he testified to having resided, that he lived with his wife a while, held not error, in view of prosecutrix's testimony as to his statément immediately before offense that he had been married.
    7. Criminal law <&wkey;392 — State held properly permitted to prove by defendant that he married sister of one not called as witness by state.
    Where defendant testified as to matters showing that witness on former trial was in position to know facts favorable to defendant, state was properly permitted to recall defendant after close of evidence and prove by him that he had married sister of such witness since alleged offense to explain state’s failure to put him on stand.
    8. Rape <&wkey;44 — Rule against proving that accused in rape trial was married held not violated by proof that he told prosecutrix under 15 that he had been married.
    Rule against proof, &s independent and irrelevant fact, that accused in rape trial was married man, was not violated by proof that he told prosecutrix, who was under 15, that he had been married, as part of inducement.
    On Motion for Rehearing.
    9. Criminal law <&wkey;l 169(2)— State’s proof by defendant that he married sister of one not called as witness by state held not prejudicial error.
    Allowing state to recall defendant after close of evidence in rape trial and prove by him that lie had married sister of witness on former trial since commission of offense, for sole purpose of explaining state’s failure to use such witness, held not prejudicial error, in view of persuasive evidence of defendant’s guilt and fact that jury gave him lowest penalty.
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    Eugene Hagood was convicted of rape, and he appeals.
    Affirmed.
    Brooks & Robinson, of Anson, and T. J. McMahon, Roy L. Duke, and Stinson, Coombes & Brooks, all of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   MORROW, B. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of five years. This is the second appeal of the case. The facts are mainly revealed in the decision reported in 104 Tex. Cr. R. 429, 284 S. W. 547.

The alleged injured party was Esther Tabor. Her younger sister, Lena Tabor, while on the witness stand, was asked by the state how many times prior to the date of the alleged offense she had been visited by the appellant, to .which she replied that he had made but one visit to her previous to that time. Bill No. 3 complains that the same witness testified that her sister, Esther Tabor, had never gone in company with any boy prior to the time of the alleged rape, upon her. These bills are not self-explanatory, and we fail t(? perceive that they present any question for serious consideration. Such relations as the questions and' answers indicate, that is, the relation of the witness to the injured party or the appellant, where they involve the commission of no crime or discrediting matter, are properly received; and in- the present instance, if the inquiry related to a matter which is not material, we fail to perceive any harmful consequence that could follow it, and none has been pointed out.

Bill No. 6 makes complaint of a part of the testimony of the prosecutrix, Esther Tabor, relating to a conversation which took place between herself and the appellant at the time of the alleged act of intei'course upon which the prosecution of rape is based. It appears in the bill that as they were about to engage in the act, she told the appellant that she did not want to do so, and he said: “Oh, come on;. I have been' married, and I know everything.” This was manifestly res gestse.

Bill No. 7 complains of the remarks of the district attorney. The prosecutrix testified that the date of her birth had been entered in the family Bible about three years ago, but that the leaf had been torn out by one of the children. The district attorney remarked that the family Bible, if presented, would not be admissible in evidence. We fail to appreciate the importance of the matter.

Bill No. 8 complains that at the time of the act upon which the prosecution is based and immediately before, the appellant said he had been married and that he ought to know. According to the prosecutrix:

“He said he had been married and he ought to know—for me to come on and have a good time. I told him I didn’t want to have a good time that way. He said he had been married and he ought, to know what it was to have a good time.”

This is a res gestse statement and we think it was clearly admissible. Although it referred to the fact that the appellant had been previously married, it was relevant as a part of the transaction.

While the appellant was being cross-examined, state’s counsel asked him the following question: “You are a very virtuous young man, aren’t you?” The bill fails to show the answer and also fails to show error.

On cross-examination the appellant was asked by the district attorney how long he had resided in the county, to which he replied, “Five years;” that he came from Marion county, where he had resided for three years, with Mike Michael most of the time. State’s counsel then asked him the following question: “Who else did you live' with?” Appellant replied: “I lived with my wife a while.” The answer seems responsive to the question, and we think the court was not in error in refusing to exclude it. In qualifying the bill the court stated that the appellant had introduced testimony as to his good reputation for virtue and chastity and that the question was pertinent to the issue. Moreover, the information that he had been married was a matter already appropriately before the jury by reason of res gestse testimony given by the witness Esther Tabor.

In Bill No. 12 it appears that after the evidence closed the appellant was recalled by the state, and it was proved by him that since the date of the alleged offense-he had been married to the sister of Elbert Jones. As the bill is explained, it seems that Elbert Jones had been used as' a witness on the former trial, and the court deemed it pertinent for the state to show the relationship of Jones as explanatory of the state’s failure to use his testimony upon the present trial. It seems that the appellant, in his own testimony, disclosed matters showing that Jones was in a position to know some facts favorable to the appellant, and the state failed to put Jones on the witness stand to prove the contrary.

The prosecutrix' was under the age of 15 years. We fail to find anything in the record which makes applicable the principles which control the decision of this court in Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849; McDuff v. State, 103 Tex. Cr. R. 668, 281 S. W. 1073, in which it was announced that it was not permissible for the state to prove, as an independent and irrelevant' fact, that the accused on trial for rape was a married man. The rule was not violated in the present case by proof that the appellant, as a part of the inducement to persuade the prosecutrix, a girl under 15 years, to engage in sexual relation, said that he was a married man or had been married. As stated above, this was a part of the transaction.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that we erroneously disposed of the matters complained of in his bill of exceptions No. 12. As we grasp the argument made by appellant in his motion, his insistence seems based on the proposition that allowing the state to bring him back on the stand and prove by him that since the commission of this offense he had married a ^ister of Elbert Jones and that Elbert Jones had married a sister of appellant, must have had the effect of greatly prejudicing the jury against him. The undisputed facts show that there were four people in a car together who took a ride on the evening of the alleged rape, viz., this appellant, Elbert Jones, Lena Tabor, a sister of prosecutrix, and prosecutrix, Esther Tabor. The state introduced "in its behalf Lena Tabor and Esther Tabor. There was evidence showing that at a former time the state had used Elbert Jones. The testimony of the two gilds mentioned made plain before the jury the fact that if Elbert Jones so desired he -could give testimony material to the solution of this case. Presuming the state to be in possession of the facts testified to by appellant when recalled, at the time complained of, the state did not deem it wise or expedient to introduce Jones. Appellant testified in his own behalf and closed his case without introducing Jones. For the sole purpose of explaining its failure to use the witness Jones, as it appears to us, the state made the proof by appellant of the change in the relationship between him and. Jones resulting from their respective marriages. We cannot believe the testimony of any material injury to appellant. The prosecutrix testified unequivocally to the fact of her being under the age of consent, and that appellant had intercourse with her. She is substantially corroborated by her sister. Two doctors who examined her the next morning said she had been violated. The jury gave appellant the lowest penalty. This does not lead us to think that anything in the testimony created any prejudice against him. We are unable to agree with appellant in his contentions.

The motion for rehearing will be overruled. 
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