
    COLLINS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 29, 1912.
    Rehearing Denied June 26, 1912.)
    1. Rape (§ 63) — Suppiciency op Evidence— . Assault with Intent to Commit Rape.
    Evidence in a prosecution for an assault with intent to rapé held sufficient to show both that accused assaulted the prosecutrix, and that the assault was made with the intent to rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 78-81; Dec. Dig. § 53.]
    2. Criminal Law (§ 741) — Appeal — Verdict — Conclusiveness — Weight op Evidence.
    The jury are the judg.es of the weight to be given to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1138, 1221, 1705, 1713, 1716, 1717, 1727, 1728; Dec. Dig. § 741.]
    3. Criminal Law (§ 598) — Continuance— Absence op Witness — Diligence.
    Where a witness for the state, in a criminal prosecution, after the summons moved to another county and the state, when the case was called, had an attachment issued for the witness, accused, who prior to that time had made no application to have this witness subpoenaed in his own behalf, was not diligent, and henee his motion for a continuance on account of absence of such witness was properly overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    4. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence — Impeaching Evidence.
    Newly discovered evidence, tending merely to impeach a witness, presents no ground for a new trial. ,
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    5. Rape (§ 16) — Assault with Intent to Commit Rape — Intent.
    Before one can be convicted of assault with intent to commit rape, it must be found that he had the specific intent to have sexual intercourse with prosecutrix, and a finding that he placed his hands on the girl with her consent with no intention to rape her is no offense.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 15-19; Dec. Dig. § 16.]
    6. Criminal Law (§ 957) — New Trial-Verdict — Impeachment by Juror.
    A juror will not be permitted to impeach his verdict by testifying that he misunderstood the charge of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    7. Witnesses (§ 395) — Impeachment—Former Statement.
    In a trial for assault with intent to rape, where defendant, to impeach the testimony of prosecutrix, showed that she had talked with counsel for the state before testifying, it was not error to permit her to state that she had made to him the same statement to which she had testified on trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1200; Dec. Dig. § 395.] .
    8. Criminal Law (§ 1091) — Appeal—Bill oe Exceptions.
    Where a bill of exceptions to the exclusion of the question asked defendant does not show what answer, if any, was made to the question, the matter is not properly presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    9. Criminal Law (§ 730) — Trial —Argument of Counsel.
    In a prosecution for assault with intent to rape, the argument of the state’s attorney that if a witness subpoenaed in the case, but then dead, was alive and in court, he believed that he would say that defendant stated “that there were two cocks out there in that buggy, and I am going to have one of them before morning,” explained by the court to the effect that it was in reply to remarks of defendant’s counsel, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    10. Rape (§ 16) — Statutory Rape — Assault with Intent to Commit Rape — Force.
    In a prosecution for assault with intent to commit rape upon a girl under the age of consent, allegations of force, threats, or fraud are not necessary.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 15-19; Dec. Dig. § 16.]
    11. Criminal Law (§ 730) — Trial—Argument op Counsel.
    In a prosecution for assault with intent to rape, argument of the state’s attorney that, “if you don't convict the defendant in this case, there is no use for the grand jury of your county to hereafter indict any man for the detestable crime of assault with intent to rape, committed in your county,” in the absence of any special charge by defendant, and where the court instructed the jury not to consider such remark, was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    12. Rape (§ 59) — Statutory Rape — Instructions — Elements op Offense.
    An instruction in a prosecution for an assault with intent to commit rape that if defendant assaulted prosecutrix, then under the age of 15 years, by putting his hands and arms around her, and fondling her with the specific intent to have carnal knowledge of her, without defining the word “assault,” fully presented the issues under the evidence.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.
    Tom Collins was convicted of an assault with intent to commit rape, and he appeals.
    Affirmed.
    Buchanan & Stone, of Brenham, and T. J. Carter, of Somerville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was indicted, charged with the offense of assault with intent to commit rape. When tried, he was adjudged guilty, and his punishment assessed at two years in the penitentiary.

The first two grounds in the motion for new trial complain of the verdict, alleging that the evidence is insufficient to show that appellant assaulted the prosecuting witness, or that, if he did assault her, it was with the intent to commit the offense; of rape. The prosecuting witness, Iva May Griffin, testified: That she went with appellant ánd his sister to a party at Mr. Kaltwasser’s on the night of the alleged offense. That, when returning home, she requested appellant to carry her home, but appellant insisted on carrying his sister home first, and did do so, and then started with her to her home, when, she says, they got to a gap they must pass through, and appellant stopped, and then to tell it just as it appears in the statement of facts we copy: “I asked him what he stopped for, and he said it was none of' my damn business. He says he done as he damn please wherever he went, and I says: ‘Get out and open the gate. It is late. Mamma is expecting me back home.’ And he said he wouldn’t' do it, and I couldn’t make him, and I told him I would get out and open the gate, and then he got out and opened the gate, and came back and got in the buggy, and says, ‘Now you drive through,’ and then he got out and went back and closed it again. Yes, sir, he did something else. Well, he mentioned trying to get me to leave here with him, asked me if I would run off with him, and I says, ‘No; I never saw the man yet that I would run off and marry;’ and he says to me, ‘Yes; and I never saw the damn woman yet that I would 'marry.’ And I commenced to crying, and he says that I could go to a boarding house with him, and, when I got ready, I could come back. He wanted me to go to Temple with him and stay at a boarding house with him, and he says any time I got ready to go that I could go back in the name of Miss Iva May Griffin, and that I would be just as nice then as I ever was, and then he said, if I would do what he wanted to, he would pay me. Said he would pay me just as much as I- wanted if I would do what he wanted me to do, and I said I would not do any such thing, and he says, if I won’t do it for pay, I would do it anyhow. He said I had to give him what he wanted. He said that ‘pussy is what he wanted, and he was going to have it.’ No, sir; he didn’t do anything to me. He tried to hold me in the buggy, and I started to get out of the huggy, and, as I did, he cut one wheel of the huggy out of the road and one was in it, and he turned the horse’s head right in the corner of our pasture, right there where our land and Mr. Allcorn’s land comes together. He cut my wheel around so that I couldn’t get out, the wheel on my side. I said, if he didn’t leave me alone, I was going to tell papa on him, and he said ‘he didn’t give a God damn’ for my daddy and brother both. T don’t give a damn. I am ready for them any time. I am fixed for them any time.’ Yes, sir; I got out of the buggy. No, sir; he never did get' hold of me outside of the buggy. As to what he did to me inside of the buggy, will say he tried to hold me in the buggy, and I jumped out of the buggy and I went to the wire, and I said I would call mamma, and I would go home, go right through the pasture, and, as I was fixing to crawl under the wire, he jumped out, and then I went around the buggy, and he went around the horse’s head that way [indicating], and I got back in the buggy and he got back in the buggy, and he caught hold of me again. He caught hold of me around the waist. He didn’t try to put his hands anywhere. He tried to pull up my dress. He tried to pull up my dress so many times, so many times, that I can’t remember. The reason he didn’t pull it up was because I fought him just as long as I could. Yes, sir; somebody came along during that time. During this time I was crying, and trying to get him not to bother me, told him I would call papa. I was crying, and trying to get aloose, and he said, ‘Crying won’t do any good.’ Yes, sir; I screamed. The expression I used was, ‘Oh, Lordy, what shall I do?’ I cried out lots of times. I don’t know how many times. Yes, sir; I was badly frightened. Yes, sir; I saw some one coming along. Mrs. Alleorn came along. I was in the huggy. at the time she came along. I just had got in the buggy when she came along. He was standing on the side. As to whether Mrs. Allcorn said anything to him or he said anything to Mrs. Alleorn, will say, he says, ‘Mrs. Allcorn, do you want to go through this gap?’ As soon as he saw her, he says — he says— ‘Mrs. Alleorn, do you want to go through here?’ and she said, ‘Yes,’ and he got out and opened the gate there, and I drove through. Yes, sir; Mrs. - Allcorn went through the gate. No, sir; she didn’t say anything at the time. No, sir; I didn’t say anything to Mrs. Allcorn. As to why I didn’t say anything to her, will say, well, I was scared so bad I didn’t think of it, I didn’t know what to do. As to what happened after that, will say he drove on till he got on the other side of Mrs. Allcorn, and he commenced again — between Mrs. Allcorn and the ravine. Yes, sir, we had passed Mrs. Allcorn at that time. It was about 100 yards, I guess, on the other side of the gulley towards Mrs. Allcorn's house, on the side towards Mrs. Allcorn’s house. No, sir; I don’t know how far it was from Mrs. All-corn’s house; and he commenced holding me again, tried to hold me again, and I got out of the buggy, and I told him I was going through the pasture and go home, and he said ‘He didn’t give a damn,’ and he turned his horse around on this side of the road and came back on this side of the road, and he says: ‘Come, get in the buggy. I ain’t going to bother you any more. I’ll leave you alone.’ And, if I had went through there, 1 would have went through a deep gulley, and I got in the buggy again, and, when he got to the gulley, he turned down it, down that way, and I turned around and pulled the horse back in the road, and, after we got through that gap, through that cut, and when we got to the gate there, about 100 yards from the cut to the side of the gate from our house, he commenced again, and I tried to get out, and he pulled his horse right up against the wire, and he caught hold of me again, and I couldn’t get away from him that time. The only way I could get away from him was to drop my handkerchief, and I told him he had to turn me ‘loose, I had to get my handkerchief,’ and he said, ‘He didn’t give a damn, that wasn’t no kind of a handkerchief,’ and I says, ‘Let me aloose,’ and I grabbed the buggy whip, and hit him over the head, and then he had to get out. I knocked his hat off, and he had to get out to get it, and I started on then, was going home, I was going to leave him, and then he ran around side of the huggy, and caught hold of the lines, and jerked the horse’s head right up just as hard as he could, and it scared me so the horse reared up, and I jumped out of the buggy and was going to the house by myself, and he said, ‘If I would wait and get in the buggy again, he wouldn’t do anything more to me.’ And I told him, ‘No; I didn’t want anything more to do with him;’ and he says he ‘didn’t give a damn whether I got in or not,’ and then he says, he ‘was damn tired of fooling with me, and he was going to do what he damn pleased,’ and he caught hold of my arm, and he told me to get in the buggy, and he would take me home, and he wouldn’t bother me any more, and I says, ‘You done told me that lie once;’ and he says, ‘If you will get in the buggy, I won’t bother you any more,’ and I got in and went on home, and he says, ‘Now don’t you tell;’ and he says, ‘If you do, it won’t be good for you.’ He said that when I told him I was going to tell papa. When I got home, I jumped out of the buggy, and ran on in the house.”

Mrs. Mattie Alleorn, whom the prosecuting witness says passed along while they were at the gap, testified: “As to what happened on the way back to my house, will say, well, as I got a piece from the house, I reckon maybe 200 steps or so, I think it was about that far, best that I can get at it, that far from the Wilkerson house, I heard some loud talking, and I thought it was my two daughters, and it excited me, heard the loud talking, and I knew that it was some one in distress from the loud talking; and I told my little boy to wait a minute, and in a minute I heard it again, some one talking, heard it plainer, and broke and run. As to what direction I ran, will say, you know the road through the field, don’t you. I ran down to where it turned the last time before we got to the wire gap. That wire gap is right between our field and Mr. Wilkerson’s. That gap maybe is about 400 yards from the Wilkerson house. I mean it is about that far straight through, best that I can judge. It is a little further along the road. Yes, sir; I broke to run. Still was in this wagon road. I didn’t go through the prairie on account of the grass burrs, and the next I heard some one crying, crying like they was in distress. Still I thought it was my girls, and I ran on and I stopped then at the gate I was so tired, and I have trouble with my heart anyhow. No, sir; the gate I am speaking about is not the wire gap. It is the gate that goes into the Wilkerson pasture, before you get to the wire gap. I ran again then just as hard as I could, and I stopped, and I heard some one say, ‘Oh, Lordy, what will I do?’ and I run again as hard as I could, and before I got to this wire gap, thinking it was my daughters, I screamed as loud as I could, called my oldest .daughter’s name, and told her I was coming. My daughter’s name was Lula. Yes, sir; I thought it was my girls, and I screamed. I thought something had scared them, and I went on down to the wire gap, and I found it wasn’t my girls, but that it was some one else. It was Iva May Griffin and Tom Collins. Tom Collins is the defendant. Iva May 'was sitting up in the buggy, and he was standing down by the side, and I just stood there and he opened the gap, and she drove through. As to what my condition was when I got there, will say, I was nearly dead I had run so, almost exhausted. I could scarcely breathe, and, when he started to the gap, he noticed me standing there, and he says, ‘Mrs. Allcorn, do you want to go through?’ and I told him, ‘Yes,’ and I walked on past the buggy and went on, and they came on past me, and went on around by my house, and I was behind them. Yes, sir; I went on home them.”

Mrs. Blanche Griffin testified to the age of Iva May, and said she was 14 years of age at the time of this alleged occurrence, and her daughter reported this matter to her the next day. The physician who was in attendance at the birth of Iva May also testified that she was 14 years of age. •

Appellant’s sister, who went with appellant and the prosecuting witness to the party, testified that Iva May did not try to get her brother to go by her home first, but, when they were on their way home, prosecuting witness said she was going to stay all night with her, but changed her mind after they got to Mr. Wilkerson’s; that she, witness, got out of the buggy, and appellant took prosecuting witness on to her home.

Fred Wilkerson testified he lived only about 400 yards from the gap where this occurrence is alleged to have had its inception ; that he was out at his lot seeing about his hogs, and he had to go half way to this gap after his hogs about the time appellant was driving off with the prosecuting witness; that he was close enough to have heard it had there been loud talking or crying, and he heard none; that he was brother-in-law of defendant.

Appellant testified that he took the two girls to the party; that he carried his sister home and started to carry the prosecuting witness home, and, when he got to the gap, he got out to open it and asked Iva May to kiss him, and, as she didn’t seem to care, he put his hand on her shoulder and kissed her, when, Mrs. Allcorn appearing, the girl remarked, “Oh, Lordy, what will I do?” that he did not attempt to rape her, and had no such thought, and denied in detail the transaction as testified to by the prosecuting witness.

The jury were the judges of the weight to be given to the testimony, and the first two grounds in the motion present no error.

The next ground complains of the action of the court in overruling the motion for a continuance on account of the absence of Harmon Dearson and Bud Krueger. By Dearson it is stated he expected to prove that he was at the Wilkerson home, and that he heard no loud talking or crying. It appears that this witness had been summoned by the state, and since being summoned had moved to another county; that the state, when the case was called for trial, had an attachment issued for the witness. This was not diligence on the part of the state, and, as the defendant prior to this time had made no application to have this witness ■subpoenaed in his behalf, this would not be diligence as to him.

As to the witness Krueger, it was stat ed he would testify that since the alleged commission of the offense he had bought eggs from the prosecutrix on different occasions, and on one of these occasions she stated to witness that defendant did nothing to her but kiss her. It has been the unvarying rule in this court that, when testimony is desired to impeach or discredit a witness, it presents no ground for a new trial. However, under some circumstances, this testimony might amount to more than merely impeaching testimony. If the application had shown that the prosecuting witness had made this statement to Krueger before the prosecution was begun, or shortly after the transaction, we would be inclined to hold that a new trial should have been granted. But as the record in this ease does not show when this witness would testify that the girl made this statement, whether before or subsequent to arrest, we cannot hold that it would serve any purpose other than to discredit and impeach the state’s witness, and under such circumstances it presents no ground for reversal. Tate v. State, 146 S. W. 169, and cases there cited. Three of the jurors seek to impeach their verdict by testifying when the motion for new trial was heard that some of the jurors had stated it was not necessary for defendant to have the specific intent to rape, but, if he placed his hands on the prosecuting witness, he would be guilty of assault to rape, and, if they had not been so informed, they would not have agreed to the verdict.

In this case the court instructed the jury:

“(1) ‘Rape’ is the carnal knowledge of a female under the age of 15 years, other than the wife of the person, with or without her consent, and with or without the use of force, threats, or fraud.
“(2) If you believe from the evidence beyond a reasonable doubt that the defendant, Tom Collins, in the county of Burleson and state of Texas, on or about the 19th day of November, A. D. 1910, did make an assault upon the said Iva May Griffin by putting his hands and arms around the person of the said Iva May Griffin and fondling her with the specific intent, on his part, to have carnal knowledge of and sexual intercourse with the said Iva May Griffin, and you further find from the evidence that the said Iva May Griffin was at the time under the age of 15 years, then you will find the defendant guilty, as charged in the second count of the indictment, and assess his punishment at confinement in the penitentiary for any term of years not less than two years. If you do not so believe from the evidence beyond a reasonable doubt, you will acquit the defendant on the charge of assault with intent to rape.
“(3) If you believe from the evidence beyond a reasonable doubt that the defendant, Tom Collins, in the county of Burleson and state of Texas, on or about the 19th day of November, A. D. 1910, did assault the said Iva May Griffin by putting his hands upon her person, and by fondling her person, against her will, and that such conduct, if any, did cause the said Iva May Griffin a sense of shame and mortification, and you do not find from the evidence beyond a reasonable doubt that he did so with the specific intent to carnally know and have sexual intercourse with the said Iva May Griffin, then you will find the defendant guilty of aggravated assault, and assess his punishment at a fine of not less than $25 nor more than $1000, or by confinement in the county jail for a term of not less than one month nor more than two years, or by both such fine and imprisonment. If you do not so believe from the evidence beyond a reasonable doubt, you will acquit the defendant on the charge of aggravated assault.
“(4) If you believe from the evidence that the defendant did put his arms around the said Iva May Griffin, and that he did so with her consent, and you do not believe from the evidence beyond a reasonable doubt that he did so with the intention of having sexual intercourse with the said Iva May Griffin, then you are instructed to return a verdict of ‘not guilty.’
“(5) If you find from the evidence that the defendant is guilty of an assault, but you have a reasonable doubt whether such assault is assault with intent to rape or aggravated assault, then you must give the defendant the benefit of the doubt, and in such ease, if you find him guilty, it could not be of a higher grade than aggravated assault.”

It will be seen that the court in his charge correctly presented the law in this respect, presenting the issue that, before they would be authorized to convict of assault to rape, they must find that he had the specific intent to have .sexual intercourse with the prosecuting witness; and, if they did not so find beyond a reasonable doubt, he would be guilty of no higher grade of offense than aggravated assault, and, if he placed his hands on the girl with her consent with no intention to rape her, he would be guilty of no offense.

It has always been held that a' jury man will not be permitted to impeach the verdict by testifying .that he misunderstood the charge of the court. Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230; Tolston v. State, 42 S. W. 988; Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828.

Bill No. 2, as qualified by the court, presents no error. It was developed by the defendant on cross-examination that the prosecuting witness had talked to Mr. Heslip, of counsel for the state, before testifying, for the purpose of impairing her testimony. Under these circumstances, it was not error to permit her to state she had told Mr. Heslip the same statement she had testified to on the trial.

In bill No. 3 it is °hown that while appellant was on the stand he was asked if he had said to Mr. Freda on the night of the alleged rape, “There is two cocks out there in that buggy, and I am bound to have one of them before morning.” It is not shown what the answer was to the question, if any was made, by the bill. If witness stated he did make such -statement, it would be very material to the state’s case. If he did not, he would have been permitted to so answer, and if the state could not, as appellant states, produce Mr. Freda, his answer would be accepted as true. The bill not showing what was the answer of the witness, or that he answered at all, it is not in such condition that we can review the matter. Section 1123, White’s Ann. Code.

It is also shown by another bill (No. 6) that Mr. Heslip while making the. closing argument said: “That if the said Freda (who was a witness in this case, and was subpoenaed, but who is now dead) was alive and in the court to-day, that I believe that Freda would swear that the defendant made the statement that ‘there were two cocks out there in that buggy, and I am going to have one of them before morning.’ ” This would present error if it was not shown that it was in reply to remarks of defendant’s counsel. In approving the bill the court states: “Allowed with the following explanation: Mr. Mathis, one of defendant’s attorneys, stated in his argument to the jury that if Freda were alive that he would not swear to any such things as set out above, and, if he should do so, that he ought to be sunk deep in hell. Mr. Buchanan, attorney for defendant, had also stated in his argument to the jury that Freda was his friend, and was satisfied that he would testify to nothing that would injure the defendant. Mr. Heslip, assisting the state, in his argument stated that ordinarily he would not refer to this matter, but, as defendant’s attorneys had made the above statement, he would reply, and was permitted to make the statement set out in this bill.”

The appellant requested the court to instruct the jury in regard to amount of force necessary in this character of case, and unless the jury believed the defendant used sufficient force to establish the specific purpose and intent to have carnal intercourse they would acquit. In the case of Moore v. State, 20 Tex. App. 278, this court, speaking through Judge White, said: “Where the injured female is under the age of 10 years, it is neither necessary to allege in the indictment nor to prove on trial that the offense was committed ‘with or without consent and with or without the use of force, threats or fraud,’ because carnal connection with a female of such tender years is per se rape under any and all circumstances, whether with her consent or not. Penal Code, art. 528. Allegations, then, of force, threats, and fraud should in such cases never be used. Standard precedents and prescribed forms do not contain them. 1 Whart. Prec. of Ind., 189, 190; 1 Bish. Crim. Proc. § 481.” In the case of Fowler v. State, 148 S. W. 576, recently decided, we discussed this question and cited authorities, also in the case of Hightower v. State, 143 S. W. 1168. In this latter case is discussed the case of Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129 (cited by appellant), and it is shown that that case does not hold that force must be charged and defined in case of assault to commit the offense of rape on a girl under the age of consent. In the Cromeans Case the holding was that the facts did not show that the offense had been committed.

In bill No. 5 it is shown that the prosecuting officer in his argument stated: “Gentlemen of the jury, if you don’t convict the defendant in this case, there is no use for the grand jury of your county to hereafter indict any man for the detestable crime of assault with intent to rape committed in your county.” The court instructed the jury not to consider these remarks as they were improper. Appellant presented no special charge, and, as the court instructed the jury not to consider the remarks, they are not of such character as would present reversible error. Edwards v. State, 61 Tex. Cr. R. 315, 135 S. W. 540, and authorities there cited.

Appellant complains that in paragraph 2 of the charge (hereinbefore copied) the court gave no definition of assault. The court in said charge required the jury to find beyond a reasonable doubt certain facts to be true which in law would amount to an assault in this character of case, before they would be authorized to convict, and, under such circumstances, it is immaterial whether or not the court defined that word. The charge fully and fairly presents the issues under the evidence, and the motion for new trial points out no error therein.

The judgment is affirmed.

PRENDERGAST, J., not sitting.  