
    O’NEAL v. STATE.
    (No. 10413.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied May 2, 1928.
    1. Criminal law <3=>508(l) — In rape prosecution codefendants, indicted for rape committed on same girl at same time, held incompetent as witnesses under evidence that they were present and abetted defendant’s crime (Code Cr. Proc. 1925, arts. 711, 712; Pen. Code 1925, arts. 66, 69, 82).’
    In prosecution for rape, two codefendants who were under indictment for having raped the same girl at the same time were incompetent as witnesses for defendant, under Code Cr. Próc. 1925, arts. 711, 712, which forbids introduction as witnesses for each other of persons charged as principals or accessories with same offense,, where evidence indicated that all were present and encouraged crime and that one of co-defendanfs also ravished the girl, since it appeared that all were • principals to the same offense, under Pen. Code 1925, arts. 66, 69, 82.
    2. Criminal law <§=^780(I)— Defendant had no right to have jury informed that he had offered as witnesses codefendants whose testimony was held incompetent (Code Cr. Proc. I9'25, arts. 711, 712).
    Where in rape prosecution codefendants charged with same offense were held incompetent as witnesses, under Code Cr. Proc. 1925, arts. 711, 712, defendant had no right to have the jury apprized of the fact that he had of- ' fered such witness.
    
      3. Criminal law <§=>829( I)— Refusal of special charge substantially covered by main charge held not prejudicial.
    Refusal of special charge held not prejudicial, where substantially the same instruction was given by trial judge in his main charge.
    On Motion for Rehearing.
    4. Criminal law <§=>427(5) — Conspiracy may be proved by circumstances.
    Conspiracy may be proved by circumstances, and, generally, circumstantial evidence thereof is necessary.
    5. Rape <§=>18 — Persons mutually agreeing to ravish girl or co-operating in commission of rape are all guilty as principals (Pen. Code 1925, arts. 66, 69).
    Persons who mutually agree to ravish girls or who act together in such a way as to encourage commission of offense are all principals to crime of rape, under Pen. Code 1925, arts. 66, 69, though not all have intercourse with prosecutrix.
    6. Rape <§=>18 — State, under indictment for rape, may convict by proof of carnal knowledge had by codefendant not mentioned in indictment, if defendant abetted crime (Pen. Code 1925, arts. 66, 69).
    Under indictment charging defendant with rape of girl, state may prove as basis for conviction, under Pen. Code 1925, arts. 66, 69, that defendant was merely present and abetting crime, and that actual carnal ’knowledge was had by codefendant not mentioned in indictment.
    Appeal from Criminal District Court, Harris County; W. G. Love, Judge.
    Jack O’Neal was convicted of rape, and he appeals.
    Affirmed.
    Heidingsfelder, Kahn & Branch, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin; for the State.
   LATTIMORE, J.

Conviction for rape; punishment, five years in the penitentiary.

Bills of exception Nos. 4, 5, and 6 present complaint of the refusal, respectively, to permit Raymond Gillaspy and John Bailey to testify for the defense, and to instruct the jury or permit them to be told that the defense had offered said parties as witnesses. The state’s objection to the testimony of Gil-laspy and Bailey was that they were indicted for complicity in the same offense here charged against this appellant. The objection was sustained upon the theory that article 711 of our Code of Criminal Procedure forbids the introduction as witnesses for each other persons charged as principals, accomplices, or accessories, whether in the same or different indictments, to the same offense. The decisions of this court have interpreted said statute as meaning that the offered witness, to be incompetent, must be indicted as a principal, an accomplice, or accessory to the identical criminal offense charged against the accused on trial. Day v. State, 27 Tex. App. 144, 11 S. W. 36; Griffin v. State, 43 Tex. Cr. R. 428, 66 S. W. 782; Thomas v. State, 66 Tex. Cr. R. 326, 146 S. W. 878; West v. State, 98 Tex. Cr. R. 653, 267 S. W. 731; Smith v. State, 99 Tex. Cr. R. 203, 268 S. W. 737. Before the defense offered the testimony of said two witnesses in the case before us, the state had shown that both of them were indicted for rape upon the prose-cutrix herein on the same date as is charged herein against appellant. The testimony before the court otherwise showed that Gil-laspy, Bailey, and appellant took two young girls, one of whom was prosecutrix, from their homes at night upon the pretense of taking them to a picture show, but instead the girls were taken to a dark and lonely road. When they left home Gillaspy told prosecutrix they were going to take appellant to Wolf’s dance hall and were then coming back to the picture show, but they did not so take appellant, nor did they at any time go near Wolf’s dance hall or any picture show. When the car, in which they were, stopped on said road at the scene of the alleged outrage, appellant got out upon some pretext and walked away, leaving prosecutrix and her girl friend with Bailey , and Gillaspy. The latter at once attacked prosecutrix who pushed him away and jumped out of the car. He jumped out after her and began trying to put his arms around her. She got back in the car with her friend, and Gillaspy followed her. She got up in an effort to get on the other seat, and he tried to pull her down in his lap, but she got in her friend’s lap. Gillaspy then attacked the other girl, but presently got out of the car. Appellant, who had returned, told prosecutrix he wanted to talk to her and did not want Gil-laspy to hear him because Gillaspy had a gun. Prosecutrix got out. of the car and appellant took her a short distance. She heard her friend scream and started back to the car where the other girl, Gillaspy, and Bailey were. She said to appellant that she did not care if Gillaspy killed her, she was going back to her friend, but appellant told her she was not going to do anything of the kind and pulled her back. She got away from him, and went back to where the others were, and got in the car. Appellant came and pulled her out of the car, over the car door, and dragged her in spite of her fighting and kicking and screaming, and without the slightest protestation from either Gillaspy or Bailey out a way from the ear to a point where by force he had intercourse with her. After having accomplished this, he let her go back to the car, and told her he was going to make Gillaspy let her friend alone and stop bothering prosecutrix. Arriving at-the car, appellant pulled Gillaspy from the car and they hit each other once or twice, but prose-cutrix testified that when they did this they were laughing. Gillaspy then started pulling the other girl out of the car on one side, and Bailey began pulling prosecutrix out of the car on the other side. Appellant told them to let her alone; that prosecutrix got in' the car, hut Bailey and Gillaspy ¿railed her out, and took her, one by the feet and the other by the arms out past a tree which she caught hold of and held to with all of her might, but they pried her loose from the tree, threw her to the ground, and Bailey forcibly had intercourse with her, Gillaspy standing near. When Bailey had finished Gillaspy indicated that it was his time, but she begged and cried and told them she believed she would die, was too weak to walk, and begged them to let her alone. Just before appellant took her and dragged her away from the car and ravished her, the three men had been apart to themselves talking.

We have stated only a part of the facts to make plain the proposition that we have had no difficulty under them in concluding that both Gillaspy and Bailey were incompetent as witnesses for the defense in this case, and that the state has, upon apparently good grounds, indicted both of them, and might upon this testimony seek a conviction of both for complicity in the alleged rape here charged against this appellant, and that, therefore, under said statute neither of the bills of exception under consideration shows any error. As said in Jones v. State, 85 Tex. Cr. R. 542, 214 S. W. 322, the dis-' qualifying fact is that the witness is charged with the commission of the same offense as is the person on trial, and that it is the fact of such charge which under the statute renders such witness incompetent for the defense. We find nothing in any of the other cases cited by appellant, viz., Secker v. State, 28 Tex. App. 479, 13 S. W. 774; Williams v. State (Tex. Cr. App.) 146 S. W. 168; Clayton v. State, 78 Tex. Cr. R. 158, 180 S. W. 1089; Welch v. State, 88 Tex. Cr. R. 346, 227 S. W. 301; and Cotton v. State, 92 Tex. Cr. R. 594, 244 S. W. 1027 — which in any wise is inconsistent with the opinion just expressed. Upon no theory can we perceive any right of appellant to have the jury apprised-of the fact that he had offered these incoim petent witnesses.

Complaint is made of the refusal of a special charge on the issue of consent. The trial judge in his main charge gave substantially the same instruction,as follows:

“In order to warrant a conviction in this case it must appear from the evidence, beyond a reasonable doubt, that the said Gladys Spi-vey used every reasonable exertion and means of resistance within her power under the circumstances shown by the evidence, to prevent such act of carnal knowledge, if any; and if you have a reasonable doubt as to whether the said Gladys Spivey did use every such reasonable exertion and means of resistance within her power, under the circumstances, you will give the defendant the benefit of such doubt, and acquit him.”

This disposes of the complaints appearing on behalf of the appellant.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

In the indictment filed January 27, 1926, it was charged that Jack O’Neal, on the 10th day of January, 1926, in Harris county, ravished Gladys Spivey. On the trial, the appellant tendered as a witness in his behalf Raymond Gillaspy. To the competency of Gillaspy as a witness in behalf of the appellant the state interposed an objection on the ground that Gillaspy was charged by indictment with the same offense, and in support thereof introduced an indictment by the grand jury of Harris coun-. ty charging that in that county on the 10th day of January, 1926, Raymond Gillaspy ravished the said Gladys Spivey. After a'preliminary investigation, the court sustained the state’s objection. The major part of the statement of the evidence given on the trial is embraced in the bill of exceptions, and in the bill reference is made to the statement of facts.

From the testimony of Gladys Spivey, the following synopsis is taken: On the 10th of January she spent the afternoon at the home of Virginia Rasberry, a girl friend, and there that night, between 7 and 8 o’clock, saw Jack O’Neal, Raymond Gillaspy, and John Bailey. She has no previous acquaintance with O’Neal and Gillaspy, but had known Bailey a few days. She was invited by them to attend a show and requested that she be taken to her home in order that she might obtain her mother’s permission. According: ly, Gladys Spivey and Virginia Rasberry entered an automobile possessed by the three young men mentioned. The witness, after obtaining permission from her mother to go to the show, re-entered the car which had been in waiting for her. O’Neal had some musical instruments. Gillespy stated that he wanted to- take O'Neal to Wolf’s dance hall and leave him there. Instead of going to Wolf’s dance hall or to the show, the car was driven out into the county and there stopped. Immedi-; ately after the car was stopped, Raymond Gillaspy seized Gladys and kissed her. She ■ resented and resisted the assault. Gillaspy persisted and endeavored to take her into his lap. O’Neal, at the time, had gotten out of the car and was out of sight. He returned, and Gillaspy attacked Virginia Rasberry. O'Neal expressed a wish to talk to Gladys ■who liad gotten out of the car. The witness told O’Neal that she was a good girl, and he said that she had better be careful, that Gil-laspy had a gun. She told O’Neal that she had never done anything; that both she and her friend were straight. He said that “he was going to do something to somebody.” She at the time heard the screams of Virginia and said she was going to her even if she got lulled. O’Neal told her that she would not, and took hold of her, and she screamed. At the time they were some little distance from the car. During the assault by O’Neal, who was endeavoring to force her, Bailey came and said: “Why don’t you leave the little girl alone.” O’Neal said: “You had better get away from here, I will knock your head off.” The witness released herself and took hold of Bailey. O’Neal seized her, and she held to Bailey. She was halfway dragged back to the car. She entered the front seat, and O’Neal followed her. He took her and forced her across the door. She protested and fought. He took her out of the car. She was fighting him all the time. Gillaspy and Virginia were on the back seat of the car, and Bailey was standing by it. Neither made any effort to aid or defend against the assault by O’Neal. While she was fighting and kicking, she was struck by O’Neal and dragged some distance from the car, and against her utmost efforts was ravished by O’Neal, after which he said that he was going to make Gil-laspy let Virginia alone as she was but 16 years of age. She heard O’Neal say: “Don’t you shoot; don’t you shoot.” He seemed to be in good humor. He and Gillaspy hit each other once or twice, but were laughing. Gladys got on the back seat and begged that Gillaspy cease his attack upon Virginia. He persisted however, and finally pulled Virginia out of the car, and she pulled O’Neal out with her. Bailey at the time was taking Gladys out of the car. She was screaming and begging O’Neal for assistance. Virginia came back to the car and begged Gillaspy “out of it.” Then the three boys returned to the car and claimed that they desired to get tools from it because of a flat tire. She declined and was pulled out by Bailey and Gillaspy, one catching her arms and the other catching her feet. As she was dragged from the car, she caught against a tree. Gillaspy placed a gun in her side and threatened to shoot her if she did not let go of the tree. She told him to shoot. At that time O’Neal was at the car with Virr ginia. She was at a distance from the ear so that they could not be seen. She was begging that they desist and even prayed. Bailey pried her hands loose, and, with the aid of ■Gillaspy, threw her upon the ground and had intercourse with her. Gillaspy then indicated a like intention, and the witness told him she would die and continued to beg that he desist. Gillaspy finally desisted. She was taken to her home, where she reported the assault to her father.

Virginia Rasberry was 16 years of age. From her testimony it appears that after the car was stopped, Gillaspy grabbed and kissed Gladys; that she protested, and Gillaspy then attacked the witness. O’Neal took Gladys out of the car, and the witness heard her scream a number of times. Gillaspy got out of the car, and Bailey remained in it. The witness fainted, and she had to be helped back in the car. When Gladys returned to the car, the three boys went out. They seemed to be arguing and fighting. O’Neal came back and said he was trying to help the girls. The boys claimed that they needed a pump, and when Gladys refused to get out of the car, she was pulled out by Bailey and Gillaspy. She -fought, but they forced her. They threatened to shoot, and she told them to do so. O’Neal at the time was on the back seat of the car with Virginia, and, in her language, he wanted her to go ahead but she declined. She could not quote his words as she was too excited; that he held her hands. Bailey returned and showed blood on his trousers. Gladys was holding to a tree and could not walk. O’Neal picked her up and put her in the car. Gillaspy returned and pulled the witness out and tried to attack her, and got on top of her and tried to pull up her bloomers, and she continued to fight him. O’Neal did nothing to prevent him or aid the witness. They were right by the car. Bailey was standing by and said nothing. Gillaspy got the witness down on her back and took out his privates, but finally let her alone. She was too weak to do anything.

According to H. A. Spivey, father of Gladys, when she returned, she was hysterical and on the verge of fainting. He called a doctor. Upon going to his front door, he saw a large touring car standing in front of the house.

(Mrs. Spivey, mother of Gladys, testified that she was awakened during the night by her daughter, who was very excited and nervous; that her clothes were bloody.

A doctor described the condition of Gladys. He said that both her underclothing and top clothing were torn; that there was blood upon her privates, on her thigh, around her privates, and upon her legs. It was scattered over her person in various places. She was in a very nervous and hysterical state of mind, as though she had been subjected to some intense, profound shock; her skin was cold, her-pulse was rapid, and her color was pale. 'She had the appearance of quite a lot .of exhaustion as though she had been subjected to some strain that would exhaust her. I-Ier vagina was bruised; the tissues were swollen. The hymen was tom and hanging-in shreds. There was a discoloration inside of the vagina. The examination was made soon after midnight of the night of the occurrence.

Appellant introduced several witnesses who testified to his good reputation as a law-abiding man. He testified in his own behalf that he ,was 20 years of age, and described the happenings on the night of the alleged offense. He denied any assault and said that he was with the party on the night in question; that he went at the invitation of one of his boy companions in a car which belonged to the father of Gillaspy. He took his musical instrument along for the entertainment of the party. He denied any assault or conspiracy; and said that after the car was stopped he invited the prosecutrix to take a walk; that they walked out from the car and he engaged in sexual intercourse with her consent; that they remained at the place about three hours. He denied that Bailey and Gillaspy took the prosecutrix, Gladys Spivey, Away from the car, or that they made any atteirfpt to assault Virginia Kasberry. He also denied that they failed to take Virginia home at her request and let her get out in the neighborhood of her home.

A conspiracy may be proved by circumstances, and it is generally necessary to do so. 'See Wharton’s Crim. Ev. vol. 2, § 888; Underhill’s Grim. Ev. § 491; Hays v. State, 90 Tex. Cr. R. 192, 236 S. W. 463. If there was a mutual agreement to ravish the girls, the boys were principals, under article 69, P. G. 1925, in which it is declared:

“Any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act.”

Likewise, they were principals if they acted together under the conditions named in article 66, P. C. 1925, which reads as follows: ,

“When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, Aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders.”

The fact that Baymond Gillaspy did not in his person have carnal knowledge of Gladys Spivey is not determinative of his guilt of the offense of rape. If, under the facts and cir-cumstanes, he was a principal offender within the meaning of either or both of the statutes mentioned, his culpability and that of O’Neal were upon the same footing. The fact that, in- the indictment charging that Gillaspy ravished Gladys Spivey, no mention is made therein of O’Neal or of the elements of principal offenders would not prevent the state in the prosecution of Gillaspy from proving, as a basis for the conviction, that the carnal knowledge was that of O’Neal. Under such an indictment, Buth Campbell, a woman, was convicted of rape upon-proof that she aided Luther Hutcherson, a man, in the perpetration of the offense. See Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858. In Dodd v. State, 83 Tex. Cr. R. 160, 201 S. W. 1014, under such an indictment, Dodd was prosecuted as a principal in a rape by Stevenson, and the death penalty was affirmed. In Branch’s Ann. Tex. P. C. § 676, it is said:

“A principal offender may be charged directly with the commission of the offense although it may not have actually been committed by him.”

See, also, Cruit v. State, 41 Tex. 477; Williams v. State, 42 Tex. 393; Bell v. State, 1 Tex. App. 598.

Article 82, P. C. 1925, reads thus:

“Persons charged as principals, accomplices or accessories, whether in the same or by different indictments, cannot be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in behalf of the others.”

Article 711, C. C. P. 1925, is the same in substance as the one last quoted; and article 712, C. O. P., reads as follows:

. “The court may, upon suggestion made, or of its own option, interrogate a person who is offered as a witness, to ascertain whether he is competent to testify, or the competency or incompetency .of the witness may be shown by evidence.”

As indicated above, and as shown by the bill of exceptions, the judge, upon investigation of the evidence, satisfied himself that Baymond Gillaspy, who was tendered as a witness in behalf of the appellant, was under indictment for the' same offense with which the appellant was charged. It is urged in a very forceful motion for rehearing that in holding the witness disqualified the learned trial judge wás wrong. Appellant insists that Gillaspy was not charged with the same act •with the appellant, in consequence of which the statutes mentioned did not operate to exclude the testimony of Gillaspy. Several cases are cited which, on the original hearing, were examined and held distinguishable. Secker’s Case, 28 Tex. App. 479, 13 S. W. 774, was a conviction of Seeker for abusive language; namely, “You dirty bitch.” Mrs. Seeker was charged -with a like offense committed on the same day, her language being, “You dirty old slut.” The court held her evidence improperly excluded, stating:

“The offenses charged against the parties were not the same. The words charged against the parties were not identical, and there is nothing identifying the transactions as the same save the name of the injured party and the date of the alleged offenses.”

The case of Williams v. State (Tex. Cr. App.) 146 S. W. 168, was a conviction for playing “craps.” It was held that the witness Ballard was not an accomplice, which seems obvious from the facts stated in the opinion." Ballard was not charged with an offense. Therefore the construction of the statutes mentioned above was in no sense involved. In Clayton’s Case, 78 Tex. Cr. R. 158, 180 S. W. 1089, the conviction was for perjury. One Henderson had been tried in the county court for gaming. Clayton testified that at the time of the card game Henderson was not present. It was the state’s theory that this testimony was false. On his own trial for perjury, appellant offered the testimony of witnesses who were present and took; part in the game, and who swore that Henderson was not present. These witnesses were indicted for perjury, but there was no testimony that they and the appellant were parties to a conspiracy to commit perjury. They were held competent witnesses. The act to which they gave testimony was entirely different from that upon which the trial was had. Welch’s Case, 88 Tex. Cr. R. 346, 227 S. W. 301, is in substance, the same as Clayton’s Case, supra. In Cotton’s Case, 92 Tex. Cr. R. 594, 244 S. W. 1027, Herbert Cotton was convicted of manslaughter growing out of the homicide in which George Green lost his life. About the same time that George Green was killed but not by the same act, Tom Green was wounded. Herbert and Ira Cotton were indicted for the murder of George Green and for an assault with intent to murder Tom Green. At the time of the trial of Herbert, Ira Cotton, having been acquitted of the charge of murder, was held, under the statutes which we have quoted above (articles 82 and 711), a competent witness. This court rejected the theory that, under article 651, C. C. P. 1925, he would be incompetent by reason of his being under indictment for assault with intent to murder, that being a different offense. The operation of the statute last mentioned (article 651), as distinguishing “the same transaction” from the same act, is discussed at some length in the opinion, and, also in Clark v. State, 81 Tex. Cr. R. 157, 194 S. W. 157. The conclusion reached by this court and applied in the Cotton Case and the Clark Case, supra, and which is now reasserted, was that to disqualify a witness under articles. 82 and 711, supra, the witness must be under indictment for the “same criminal act” as the accused on trial at the time the coindictee is offered as a witness.

Upon the state’s evidence, the jury would have been authorized to decide that Gladys Spivey was raped twice: First, by forced carnal knowledge with Jack O’Neal; and second, by forced carnal knowledge wdth John Bailey; that in each of the rapes, Jack O’Neal, John Bailey, and Raymond Gillaspy were principal offenders. Under the indictment charging Jack O’Neal with the rape of Gladys Spivey, the state was privileged to rely upon the evidence showing the carnal knowledge by Jack O’Neal or the carnal knowledge by John Bailey. Likewise, in the indictment against Raymond Gillaspy, under the averments contained therein, as set out, the prosecution could have relied upon Ihe carnal knowledge of Gladys Spivey by either Jack O’Neal or John Bailey. In the trial of the case, as manifested by the charge to the jury, there was an election to rely for the conviction of Jack O’Neal upon the act in which he had carnal knowledge of Gladys Spivey. From what has been said, it follows that the indictment against Raymond Gil-laspy was such as to charge him as a principal offender in the'rape of Gladys 'Spivey by Jack O’Neal, from which it follows that Gillaspy was not a competent witness for Jack O’Neal in the trial of his case. It may be said, and perhaps it is correct to say, that the state having elected to try Jack O’Neal for his personal carnal knowledge of prosecutrix and having insisted upon its objection to the competency of Raymond Gillaspy as a witness for O’Neal, it would be precluded from prosecuting Gillaspy under the indictment agiainst him introduced in evidence, as a principal in the rape of Gladys' Spivey by John Bailey, but that such prosecution, if any, should be upon another indictment. The learned trial judge, after full investigation of the facts as authorized by article 712, C. C. P., supra, decided that Gillaspy was disqualified to testify for the appellant, and the opinion is expressed that in so concluding no abuse of discretion was exhibited.

The motion for rehearing is overruled. 
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