
    PAULK v. STATE.
    (No. 10130.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Granted June 8, 1927.
    I.Criminal law <&wkey;l 169(3)— Permitting state to prove fact which became immaterial by defendant’s subsequent admission held not error.
    Permitting state, in rape case, to prove that some man had intercourse with prosecutrix, held not error, though subsequently this testimony became immaterial'by reason of defendant’s admission.
    2. Criminal law &wkey;>593 — Refusing continuance because of absence of one of defendant’s attorneys held not error, where defendant was. ably represented.
    Refusing accused continuance because of absence of one of his attorneys was not error, where he was ably represented by group of distinguished counsel.
    3. Criminal law <@=»598(2) — Refusal of continuance for witness held not error in criminal case, in absence of proof of due diligence.
    Refusal of continuance, sought on ground of absence of a witness, held not error, where there was not a showing of due diligence to secure his testimony.
    4. Rape <&wkey;39 — Evidence of defendant’s prior general threat as to any girl who might be seen with him and another held admissible in prosecution for rape.
    Evidence that, two or three weeks before alleged offense, defendant made general remark threatening rape of any girl who might be seen with him and another, held1 admissible, where defendant and that other were together in taking prosecutrix in car on occasion of alleged offense.
    5. Rape &wkey;?46 — Testimony of marks on ground morning after alleged rape held admissible without proof.as to prior condition, or that others had not been there.
    Testimony of foot and elbow prints seen on next morning in field where alleged offense occurred held admissible in rape case without proof whether ground was in same condition the night before, or whether other people had been there; the omissions going to weight, rather than admissibility, of testimony.
    6. Criminal law <&wkey;448(7) — Testimony that ground where rape occurred “looked like they had been scuffling” held admissible, as rendering of facts, not opinion, in rape case.
    Witness’ testimony that ground at scene of alleged rape “looked like some three or four feet had been plowed back and. forth where they had been scuffling or scrambling” held admissible as a shorthand rendering of facts, rather than opinion.
    7. Rape <&wkey;46 — Testimony that witness heard screaming held admissible in rape case.
    Testimony that witness, on night of alleged rape, heard screaming as of persons in pain, and words which prosecutrix testified she used in calls for help, held admissible.
    8. Criminal law <&wkey;d 170(1) — Refusal of questions relating to chastity held not prejudicial, if error, where no. witness attacked prosecu-trix’s reputation.
    Refusal of defendant’s questions; whether witness heard of prosecutrix going with a strange man, and witness’ opinion of its propriety, held not prejudicial, if error, where no attack was made by any witness on prosecu-trix’s reputation, and bill did not show what answer would have been.
    
      9. Criminal law <&wkey;450 — Prosecutrix was properly permitted to testify she resisted with all her power, after detailed testimony of facts showing resistance.
    Permitting prosecutrix to testify that she resisted “all that was in her power” 1ield proper, where statement was a culminating point in narration, of facts showing resistance.
    .10. Rape &wkey;>59(l5) — Charges held to submit issue of penetration in rape case.
    Charges held clearly to submit the issue of penetration, at the time and place where alleged rape occurred.
    •II. Rape <&wkey;>59(17) — Charges held to require finding that prosecutrix resisted to extent of power, before defendant could be guilty of rape.
    Charges held to inform jury that they must ■find that prosecutrix used all her powers of ■resistance, before they could convict of rape.
    12. Witnesses <&wkey;337(6) — Permitting proof of another indictment of defendant for rape held proper on question of defendant’s credibility.
    Permitting proof that defendant was under ■indictment in another county for rape held proper, where effect of this testimony was limited in the charge to defendant’s credibility.
    On Motion for Rehearing.
    13. Witnesses &wkey;315 — Refusing to permit cross-examination of prosecutrix to show difference in demeanor at former hearing held error.
    Refusing to permit cross-examination of ■prosecutrix to show that five days before in the ■same court, before many persons, prosecutrix .answered questions defiantly without apparent •embarrassment, as contrasted with tears and timidity at trial, held error, notwithstanding ■ qualification that cross-examination was merciless, prolonged, and humiliating,- since qualification stated matters not known to jury.
    14. Criminal law &wkey;1111 (3) — Extraneous matters stated in qualifying bill are not available, though judge may testify to facts (Code Cr. ■Proc. 1925, art. 717).
    Extraneous matters concerning differences ■in conditions at trial and at former hearing, affecting prosecutrix’s demeanor in rape case, stated in qualifying a bill of exceptions, of ■which the jury had no knowledge, are not available, though, under Code Cr. Proc. 1925, art. '717, the trial judge may testify to relevant 'facts.
    ,15. Witnesses <&wkey;266 — Right of cross-examina-vtion is embraced in constitutional right to ■counsel for defense (Const. U. S. Amend. 6; Const. Tex. art. I, § 10).
    In the right of cross-examination is em-'braeed the right to have the assistance of counsel for defense, guaranteed by Const. U. S. .Amend. 6, and Const. Tex. art. 1, § 10.
    t|6. Witnesses <&wkey;315 — Prosecutrix could not be impeached by testimony of third persons, where she was ready to admit matter sought to be proved.
    Under no circumstances could prosecutrix ,in rape ease be impeached by proof by third persons of her demeanor at a former hearing, where she was ready to admit the difference in demeanor then and at trial, claimed by defendant.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    Lester Paulk was convicted of rape, and he appeals.
    Reversed and remanded.
    Farrar & Kemble, of Waxahachie, Richard Mays, A. P. Mays, and Callicutt & Upchurch, all of Corsicana, and Williams, Williams, ■McClellan & Lincoln, of Waco, for appellant.
    Sam D. Stinson, State’s A tty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of rape; punishment, 99 years in the penitentiary,

The facts show that appellant and one Pete Alexander took three young girls out in a ear on the night in question, some distance from the city of Corsicana. According to the state’s theory, after attempted assaults upon the prosecutrix in this case, she fled from the car and was pursued by appellant; she tripped and fell into a ditch upon the side of the road and was overtaken and forcibly ravished by appellant, who later carried her a short distance away into a field where there were some persimmon sprouts and again forcibly had intercourse with her. There is some testimony indicating that Alexander made an assault upon a Miss Butler, but there is no testimony in the case showing the details of that transaction. We will discuss those bills of exception at some length that are analyzed and discussed in appellant’s brief.

Appellant’s bill of exceptions No. 1, as qualified, presents no error. The state by its first witness went into a matter which was then deemed material as showing that some man had intercourse with prosecutrix. The state could not know at that time that appellant was going to take the witness stand and testify that he did have intercourse with prosecutrix on the occasion in question with her consent. We perceive no wrong in the state following the course indicated.

Appellant asked for a continuance because of the absence of one of the attorneys for the defense. Appellant' was ably defended by a group of distinguished gentlemen, and we are uhable to perceive any reversible error in the action of the court in this regard. That part of the application for continuance sought on account of the absence of a witness presents no showing of diligence.

Bills of exception Nos. 3 and 4 show that appellant was not permitted to cross-examine prosecutrix as much as he desired while on the witness stand for the purpose of attempting to show by her that there was a difference in her demeanor and conduct and manner of giving her testimony upon this trial, and upon a prior habeas corpus hearing involving appellant’s right to bail in this case; also bill No. 4 sets out the rejection of testimony offered by four witnesses who heard prosecutrix give testimony upon said habeas corpus hearing, and who now offer to testify that her manner and conduct and demeanor were different upon this trial from what same were when substantially the same testimony was given upon the habeas corpus hearing. Both these bills are qualified by appending a stenographic report of what actually was asked the witness and stated to the court at the time, and also by a full narration of the facts shedding light on the situation before the co’urt and affecting the ruling now here questioned. Accepting the qualifications as speaking the facts, as same were not objected to, it appears that prosecu-trix upon the trial of this case was subjected to what the court denominated “a most vigorous and merciless cross-examination of something like eight hours by able and ingenious counsel who sought by every possible ingenuity in the asking of shameful and humiliating questions seeking to show that she was without virtue, was the leading spirit in the transactions of that night, and sought to collect money from the defendant, etc., and that under such circumstances the witness did often hang her head, seemed crushed and humiliated,” etc. We are cited to no authority supporting appellant’s contention that he should have been allowed to go into these matters. We know of none. While not undertaking to lay down here any rule applicable to other eases, we are satisfied that under the showing made in this case there was no error. The proposition advanced by appellant, if upheld, could easily lead the trial courts to interminable investigation upon speculative matters wherein one set of witnesses would give their opinions and another group combat it by the expression of their opinions, and the matter would seem to have no end.

Walter Herrod swore that some two or three weeks before the alleged rape he heard appellant say in a barbershop:

“If you see a girl in a car with me and Pete Alexander, if she ain’t f-g, she will be when she gets back. When we get one that won’t f-k, we just take a handkerchief- and put it in her mouth and put it to her anyway.”

This was objected to and a special charge requested, asking that the jury be told not to consider said testimony, which charge was refused. We deem the action of the trial court not erroneous. Appellant and Pete Alexander were acting together in taking pros-ecutrix and two other girls, comparative strangers to them, out in a car, and apparently they were acting together in what took place out there. Prosecutrix asserted that appellant ravished her by force. His own testimony upon cross-examination is replete with admissions that the girl resisted, begged to be taken home, tried to escape, called for help, tried to push him off, locked-her legs, etc. In homicide cases the rule in regard to threats is settled to be that, if they are such as showing a reckless disregard for human life, a malignant disposition to kill any and all persons, such threats will be admitted ; also, if they be such as to embrace or-include the person actually injured, they will be held competent. Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336; Green v. State, Tex. Cr. R. 154, 233 S. W. 962. In Massey’s Case, 31 Tex. Cr. R. 371, 20 S. W. 758, appellant said he intended' to have some skin that night, if he had to kill the girls. In Bawcom’s Case, 49 Tex. Cr. R. 417, 94 S. W. 462, testimony was allowed of the fact that the accused said:

“I am going to f-k something before daylight.”

In Godwin’s Case, supra, it is said:

“If a person declares that he intends to go upon the street, and kill some person, and straightway goes upon the street, armed with a weapon, and slays an individual, evidence of the previous declaration made would be admissible, * * * as showing a malignant disposition towards all persons, which would embrace the person slain.”

In Taylor v. State, 44 Tex. Cr. R. 547, 72 S. W. 396, the accused said :

“I'am going to do some devilment and get my name in the paper.”

This was held admissible as showing a malignant disposition and suggesting that the-accused was bent on mischief. In Helvenston’s. Case, 53 Tex. Cr. R. 638, 111 S. W. 959, it was held proper for a witness to testify that the accused said he had a gun and six shells'and was ready for trouble. Mr. Whar-ton, at page 1704 of his work on Criminal-Evidence, says that threats of the accused1 against a class of persons prima facie referable to the injured party, if included-, though his name be not mentioned, are admissible, and instances are cited as where one threatens policemen generally and later assaults one. This is in line with what we-said in Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817, where we upheld the admission of proof that three years prior to the homicide in question the accused said he would1 kill any man who fooled with Mandy Smith; it being shown that, when the statement was-made, deceased had not begun paying attention to Mandy Smith. We have no doubt under the facts of this case of the admissibility of the testimony under discussion. It was simply an announcement of the fact that, when • appellant and Pete Alexander took girls out in a car, if they did not sub- • mit, they would be forced.

Both appellant and prosecutrix testified that .an act of intercourse was bad in or near some persimmon sprouts in a field belonging to Mr. Hurley, to which point prosecutrix said appellant carried her. We see no error in allowing a witness to testify that the next morning about sunup he went down into said field and where some persimmon sprouts were he saw foot prints five or six inches deep and elbow prints approximately four inches deep, and that “it looked like' some three or four feet had been plowed back and forth where they had been scuffling or scrambling out there.” The objections made that it was not shown that the ground was in the same condition at that place that it was in early the night before, and that no evidence was introduced that other people had not been to the place, and that the testimony that there had been scuffling or scrambling was the opinion of the witness, do not seem valid. As to the last, it would seem a shorthand rendering of the facts, and, as to the other objections, they seem to go more to the weight than to the admissibility of the testimony.

We see no soundness in the objection to the testimony of a witness who said he heard screaming on the night in question down near where the alleged assault took place, and, further, that the screams sounded like persons in pain, and that he heard words used which prosecutrix testified she used in her, calls for help.

The state introduced some half dozen witnesses who testified to the good reputation of prosecutrix for virtue and chastity. On cross-examination of one of these witnesses she was asked if she had ever heard of prosecutrix going out riding with a man she had never seen before. Objection to this was sustained. Appellant then asked her What she thought of the propriety of a woman going out with men she did not know, objection to which was also sustained. We observe that there was no attack made upon the reputation of prosecutrix for virtue and chastity by any witness, and, further, that it is not clear from the bill in question, what the witness would have answered to any of the questions set out. We do not deem the matter of such importance as that it would require a reversal, even if erroneous.

There appears an objection to allowing prosecutrix to testify that she resisted “all that was in her power.” It will be noted that she had already detailed many things done by her in her efforts to prevent the outrage. No such state of facts appears here as were before the court in Terry v. State, 98 Tex. Or. K. 540, 266 S. W. 511. In the case before us the statement objected to seems a sort of culminating point in the narratipn of the facts showing the resistance made by prosecutrix. In the case cited there seemed a lack of both resistance and outcry.

In paragraph 3-of the charge the jury were told that the proof must show beyond a reasonable doubt that the sexual organ of the female was penetrated by the sexual organ of the offending party; and in paragraph 8 of the charge the jury were told that they should acquit appellant, unless they believed from the evidence beyond a reasonable doubt that the sexual organ of prosecutrix was penetrated by the sexual organ of appellant while the parties were in a certain ditch in Tucker’s lane, that being the transaction upon which the state elected to stand. We are unable to see how the special charge, refusal of which is complained of in bill of exceptions No. 18, would have more clearly submitted the disputed issue as to penetration in said ditch.

The charge was excepted to as not being a clear and specific statement of the extent to which prosecutrix must have resisted in order to make the act of appellant rape. The charge told the jury in its paragraph 4 that the force used by the appellant must have been such as might reasonably be supposed to overcome all resistance that she was able to exert within her power;' further, in paragraph 7 the jury were told that, if they found that the act was with the girl’s consent, or that she yielded without sufficient resistance as explained in paragraph 4, or if the jury had a reasonable doubt as to whether such act was with consent, or was upon insufficient resistance, they should acquit. In addition to this, a special charge asked by appellant was given, stating, in efféct, that, unless they (jury) found from the evidence beyond a reasonable doubt that prosecutrix used every exertion in the ditch to prevent the rape, her consent would be presumed in law, and that, unless the state had so proven, the jury should acquit. We are not inclined to doubt the fact that the jury fully understood from these instructions that they must find that the injured female used all of her powers of resistance, before the act would be rape.

We are not quite able to perceive the force of appellant’s objection to proof of the fact that he was under indictment for the rape of Mary Butler in Navarro county. The effect of such testimony was specifically limited in the charge to affecting, if the jury believed it did, the credibility .of appellant as a witness.

We have carefully considered the objections to the charge set out in bills of exception Nos. 24, 25, 26, and 27, as well as all of the other bills of exception, and have been unable to find in them any error for which this case should be reversed.

The judgmemnt will be affirmed.

MORROW, P. X

Supplementing the conclusion stated in the foregoing opinion, the writer desires to add the following observations touching bill of-exceptions No. 4. In that bill it appears that the prosecuting witness, upon the instant trial, manifested much embarrassment and humiliation by reason of the character and subject-matter1 of the examination. Appellant desired to inquire of her if it was not a fact that a short time previous, on the habeas corpus trial, under circumstances similar to those prevailing on the present trial, she had testified without embarrassment of any character. According to the bill, it was expected that she would admit that on the former hearing she testified on the same subject-matter in a firm and loud tone of voice without hesitation and without apparent embarrassment. The bill, as drawn, shows that she would have admitted that there was a vast difference between her demeanor on the two occasions. No attempt has been made to give the details of the matter set out in the bill, but, in the opinion of the writer, the attempted cross-examination was a proper one. 1 Thompson on Trials, art. 406; Ex parte Heidingsfelder, 84 Tex. Cr. R. 204, 206 S. W. 351. It was the appellant’s right, we think, to elicit from the witness admissions touching the difference in her demeanor upon the two occasions, she, of course, having the privilege of explaining the reason therefor. Such cross-examination might have tended to discredit the witness in the minds of the jury. The explanation and qualification attached to the bill, however, apparently eliminates the vice in the ruling of the court. In the light of the statements made by the trial judge which, without objection, have become a part of the bill, it is believed that no error is revealed.

' On Motion for Rehearing.

MORROW, P. X

In bill of exceptions No. 4 it is shown that the witness Bess Hildebrand testified in detail in favor of the prosecution touching many of the facts and. circumstances attending and leading up to the transaction which occurred in Tucker’s lane upon which transaction the conviction rests, and as to what occurred there the state relied upon her testimony alone to establish the essential elements of the offense charged. The bill gives in great detail a résumé of the testimony adduced from the witness upon direct examination and describes minutely her demeanor showing that she displayed great embarrassment, hesitation, shed tears, spoke in a tone of voice so low that she could scarcely be heard, and generally displayed timidity, shame, and humiliation. Erom the bill it appears, but for objection of the state’s counsel, sustained by the court to questions propounded by appellant’s counsel, the witness would have admitted that five days previously, upon a habeas corpus hearing in the same court, touching the same transaction, presided over by the same judge, testimony recorded by the same stenographer, in the presence of many persons occupying the courtroom, in an examination conducted by the same counsel, covering substantially the same matter, she had answered questions promptly, with head erect in a defiant manner, engaged in argument with counsel, showed no timidity, embarrassment, humiliation, shed no tears, but gave her testimony boldly and.in a loud tone of voice audible throughout the courtroom, and, in fact, in her demeanor and appearance she was entirely self-possessed and in marked contrast with that displayed by her on the present occasion.

In qualifying the bill the learned trial judge states that the present trial was of undue length; that the witness was vigorously cross-examined for a long period of time by counsel for the appellant; and that under such circumstances she seemed crushed and humiliated. On the original hearing the writer was impressed with the idea that the explanation of the bill of exceptions vitiated its effect. This, upon a more careful examination, does not appear to be so, for the reason that it is manifest that in qualifying the bill the court stated matters which he knew, but of which the jury was ignorant. It is competent for the trial judge to testify to relevant facts (article 717, C. O. P. 1925), but extraneous matters stated in qualifying a bill of exceptions are not available. Benson v. State (Tex. Cr. App.) 44 S. W. 163. The basis of the complaint in the bill of exceptions is that the jury had no knowledge of the demeanor of the witness on the previous hearing. The conduct of a witness is a matter of weight with the jury in appraising the testimony given by the person. The testimony of the witness in question was in direct conflict with that of the appellant upon the vital issue of the consent of the witness. Upon the credit given her testimony by the jury depended the liberty of the appellant, and perhaps his life. The two were alone on the occasion in question. To discredit her touching the things that transpired at that immediate time his sole reliance was upon her cross-examination. In the right of cfoss-examination is embraced the right “to have the assistance of counsel for his defense” guaranteed by the Sixth Amendment to the Constitution of the United States and by the Bill of Rights, art. 1, § 10, of the Constitution of Texas. Of it, it is said: ify the case oí the cross-examining party.” 1 Thompson on Trials (2d Ed.) p. 420, § 406.

“The importance of the right of full cross-examination can scarcely be overestimated. As a test of the accuracy, truthfulness, and credibility of testimony, it is invaluable. It is the clear right of the cross-examining party to elicit suppressed facts, which weaken or qual-

Upon the present record, as certified in the bill of exceptions, hut for; the restriction placed by the trial judge upon the. cross-examination of the prosecuting witness, she would have admitted the difference in her demeanor which the bill portrays. In his qualification to the hill, the learned trial judge seems to have based his ruling upon the fact that there was some difference in the direct examination and cross-examination of the witness on the present and former occasions. By his ruling we are constrained to conclude that the right of cross-examination was unduly restricted, under the peculiar circum1 stances, to the prejudice of the accused.

In his motion for rehearing, appellant reopens the question of the soundness of the. ruling of the trial court and of this court touching bill of exceptions No. 3, which is discussed in the original opinion; appellant insisting that the testimony of bystanders to the effect that there was a difference in the demeanor of the witness on the former and present occasions should have been received in evidence. The writer fails to perceive any plausible theory upon which such testimony of third parties would he available or admissible, unless it be to impeach or discredit the prosecuting witness touching the testimony given upon the trial. If the writer comprehends the record, it was the position of the learned trial judge that the proffered testimony was not relevant for any purpose, for the reason that it was characterized as a comparison under different conditions. This inference is drawn from the fact that, as shown by bill No. 4, the court, upon that ground, excluded the proffered admission by the witness of the difference of her demeanor upon the two occasions. It is the conception of the writer that bill No. 3, as the record now appears, presents but an academic question, for the reason that the testimony to which reference is made in the bill is the same as that treated in bill No. 4, save that in the one case the testimony was offered from bystanders and in the other upon the cross-examination of the prosecuting witness. Under no circumstances could she have been impeached by proof of.her demeanor by bystanders or third parties when she was ready to admit, as shown by bill No. 4, the difference in demeanor claimed by the appellant. While, as above stated, not necessary to the decision of the case, it is not deemed improper by way of explanation to add that the court does not wish to be understood as indicating that it regards evidence of the difference in demeanor in a witness while testifying upon two separate occasions as available, except by way of cross-examination.

The motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed, and the cause remanded. 
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