
    REED v. STATE.
    (No. 3938.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.
    Rehearing Denied March 15, 1916.)
    1. Criminal Law <⅜^594(3) — Trial — Continuance — Absence oe Witnesses.
    Continuance of trial on a charge of perjury cannot be granted on the ground of absence of a witness who is a fugitive from justice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1332; Dee. Dig. <®=>594(3).]
    
      2. Criminal Law <©=594(1) — Trial — Continuance-Absence oe Witnesses — Ese ox Testimony.
    Continuance of trial on a charge of perjury cannot he granted where the testimony of the absent witness, given on a former trial, is admitted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. <S=>594(1).]
    3. Witnesses ©=>340(3) — Impeachment-^Admissibility ox Testimony.
    Where it is in issue whether a witness is of chaste- character, and she had testified that she was, testimony of lascivious acts on her part is admissible as impeachment.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1121; Dec. Dig. <©=>340(3).]
    4. Criminal Law <©=>1111(3) — Bill ox Exceptions — Conclusions.
    One who accepts a bill of exceptions with the judge’s qualification cannot be heard to dispute the truth of the qualification.
    LEd. Note. — Eor other cases, see Criminal Law, Dec. Dig. <©=>1111(3).]
    5. Criminal Law <©=>608 — Trial—Continuance — Absent Witnesses — Character ox Testimony.
    Where the evidence introduced showed that an absent witness would not, if present, testify as claimed by defendant, or that she was not in a position to have seen the acts as to which defendant alleged she would testify, refusal of a continuance was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. <©=>608.]
    6. Criminal Law <©=>614(2) — Trial — Continuance — Absent Witnesses — Second Motion.
    A second motion for continuance will not be granted, where the absent witness’ testimony will be merely cumulative.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. <©=> 614(2).]
    7. Criminal Law <©=>448 — Opinion Evidence-Statement ox Fact.
    Testimony of physicians that they had examined a witness alleged to be of unchaste character, and that she had never had intercourse with a man, giving the facts as to her physical condition, is not opinion evidence, but a statement of fact known by them to be true because of their medical knowledge.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. ©=>448.]
    8. Perjury ©=>34(4) — Evidence—Corroboration — Sufficiency.
    Where accused was charged with having falsely sworn that he had had sexual intercourse with a woman, who denied it, and physicians, after examination, stated facts from which they concluded that she had never had sexual intercourse with any man, there was sufficient corroboration of the woman to support a conviction for perjury under Code Cr. Proc. 1911, art. 806, permitting conviction for perjury only on testimony of two credible witnesses or one credible witness strongly corroborated.
    [Ed. Note. — For other eases, see Perjury, Cent. Dig. §§ 129, 132; Dec. Dig. ©=>34(4).]
    9. Criminal Law ©=>815(1) — Evidence—Instructions.
    Where further corroborative testimony was offered, refusal of an instruction, that the physicians’ testimony alone was insufficient corroboration, was not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1986; Dee. Dig. <©=>815(1).]
    10. Witnesses <©=>360 — Impeachment — Rebuttal.
    _ Where defendant, charged with perjury in having falsely sworn that he had had sexual intercourse with a woman, defended on thel ground that his statement was true, evidence as to her reputation for chastity and virtue was admissible.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dec. Dig. ©=>360.]
    11. Perjury <©=>37(1) — Elements —Voluntary Testimony.
    One accused of perjury is not entitled to a charge that he could not be convicted unless he testified voluntarily, where he, without subpoena, came into the county, and his only objection was to ask the court whether he had to answer whether he had had intercourse with the prosecutrix.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 134; Dec. Dig. <©=>37(1).]
    12. Criminal Law ©=>396(2) — Evidence— Affidavits — Admissibility.
    Where a portion of an affidavit was admitted only for the purpose of identifying it, after the state had been forced to introduce it, the defendant was not entitled to introduce the whole of it; the remainder being immaterial.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 862; Dec. Dig. ©=>396(2).]
    13. Criminal Law <©=>656(2) — Procedure— Examination ox Witness by Court.
    Qualifications of bill of exceptions to examination of witness by the court in the absence of the jury held to show no error in the examination, where defendant had alleged that it was calculated to intimidate the witness.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1525; Dec. Dig. ©=>656(2).]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Pleas Reed was convicted of perjury, and he appeals.
    Affirmed.
    J. M. Wagstaff and S. P. Hardwicke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

This is the second appeal in this case, the opinion on the former appeal being reported in 174 S. W. 1065. As the facts are so fully stated in that case, and in the companion cases of Cutbirth v. State, 174 S. W. 1066, and Cox v. State, 174 S. W. 1067, we do not deem it necessary to state them again.

Appellant again moved to quash the indictment. A copy of the indictment is set forth in the Cox Case, supra, and on the former appeal we held the indictment valid in all three cases, and we do not deem it necessary to again discuss that feature of the case. Anderson v. State, 56 Tex. Cr. R. 361, 120 S. W. 462; Jernigan v. State, 43 Tex. Cr. R. 114, 63 S. W. 560; Washington v. State, 22 Tex. App. 27, 3 S. W. 228; Chavarria v. State, 63 S. W. 313; Yardley v. State, 55 Tex. Cr. R. 487, 117 S. W. 146.

When the case was called for trial, appellant moved to continue the case on account of the absence of two witnesses, Ed Carter and Mrs. Ruth Aired. As to the witness Carter, the record discloses he was a fugitive from justice, and, of course, there was no error in overruling the motion as to him. Godwin v. State, 44 Tex. Cr. R. 600, 73 S. W. 804; Anderson v. State, 53 Tex. Cr. R. 344, 110 S. W. 54; Deckard v. State, 58 Tex. Cr. R. 34, 124 S. W. 673; Harris v. State, 8 Tex. App. 90; Vann v. State, 48 Tex. Cr. R. 11, 85 S. W. 1064. In addition, the witness Carter had testified on the former trial of this case, and appellant was permitted to introduce his testimony given at that trial on this trial. As to the witness Mrs. Aired, it may be said that the diligence is sufficient, and it appears that she was expecting to be shortly confined. So the sole question is: Was the testimony of such a material nature as the court should have granted the continuance? In the motion it is stated that the witness would testify that she was at a party at the house of Emmett Taylor, and “game of good night” was played at said party; that the prosecuting witness, Miss Simpson, and Ernest Cox were partners while playing the game, and that Miss Simpson conducted herself in a lewd and lascivious manner; that Cox embraced her, and she lovingly laid her head on Cox’s shoulder. Miss Simpson denied any such conduct, and denied that Cox was her partner in the game. So the testimony would be. admissible to impeach Miss Simpson. Again, it was an issue in the case as to whether Miss Simpson was a virtuous and chaste female, and the testimony would be admissible as original, testimony on that issue, as well as for impeaching purposes. Appellant contends that this was his first application for a continuance, but the court in approving the bill states it was the second application, and the court gives this as the ground for overruling the application when first presented. Appellant accepts the bill with this qualification, and he cannot be heard to dispute that fact. Again when the matter was presented to the court again in the application for a new trial, the court calls attention to the fact that the defendant’s witnesses Emmett Taylor and Eugene Gist place Mrs. Aired in such position that she could not have seen Ernest Gox and Miss Simpson while playing the game of good night. Mr. Gist says he was the partner of Mrs. Aired while playing that game, and he testifies to no such facts as it is alleged Mrs. Aired woul'd testify to. The appellant’s witness Emmett Taylor testified on the trial:

“In going around the house that night, Ernest Cox and Miss Minnie Simpson were the last couple to come around. When they came around the house, I was squatting down at the west end of the house at the end of the kitchen. I saw Ernest Cox and Miss Minnie Simpson come around the house. They were talking. I did not hear what they said. Mr. Ernest Cox had his arm around Miss Minnie Simpson, and she was leaning her head against his shoulder, and they were walking very slow.”

He testifies he was the only person in position to see them, but that he afterwards told Mrs. Aired what he saw. It is thus seen that the testimony adduced by defendant on the trial shows that if Mrs. Aired was present she would not testify as contended, but her information as to the conduct of Miss Simpson on that occasion was received from Emmett Taylor, and the record discloses that Emmett Taylor was present and testified at the instance of appellant, and as stated in Branch’s Crim. Law, § 253, in passing on supposed error in refusing continuance, the court will look to evidence adduced on the trial. Willison v. State, 7 Tex. App. 400; Clampitt v. State, 9 Tex. App. 31; Dowdy v. State, 9 Tex. App. 292; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175. And where it appears from the evidence on the trial that the absent witness could not have known anything about the facts which it is alleged that she would testify to, it was held that the application was properly overruled. Lindsey v. State, 35 Tex. Cr. R. 164, 32 S. W. 768; Boyd v. State, 50 Tex. Cr. R. 139, 94 S. W. 1053; Wigfall v. State, 57 Tex. Cr. R. 639, 124 S. W. 649. Appellant’s witnesses Eugene Gist, who was Mrs. Alred’s partner in the game of good night, and Emmett Taylor, place Mrs. Aired in such position that she could not have seen what took place while Ernest Cox and Miss Simpson were playing this game, if they in fact were partners on that occasion. And, according to the court’s qualification, this was a second application for a continuance, and if Mrs. Aired would testify as alleged, such testimony would be but cumulative of the testimony of Emmett Taylor, and it has always been the rule in this court that a second application for a continuance will not be granted to secure testimony that is merely cumulative of testimony adduced on the trial. Harvey v. State, 35 Tex. Cr. R. 559, 34 S. W. 623; Shackelford v. State, 53 S. W. 884; Grimsinger v. State, 44 Tex. Cr. R. 1, 69 S. W. 583; Dobbs v. State, 54 Tex. Cr. R. 583, 113 S. W. 921; Bearden v. State, 47 Tex. Cr. R. 276, 83 S. W. 808.

It appears on the trial of this case that one Henry Ethridge was prosecuted for slander, in that he had said of and concerning Miss Simpson that “she was nothing but a damned whore.” On that trial appellant testified as a witness, and testified he himself had had carnal knowledge of Miss Simpson. On that statement this prosecution is based. Dr. Alexander and three other physicians testify to having made an examination of Miss Simpson, and from that examination they testify that Miss Simpson had never had carnal intercourse with any man. Appellant objected to this testimony, claiming that it was but the opinion of the witnesses. The witnesses testify fully as to the examination, the condition they found her private parts, and gave the facts as to why they say she was a virgin. Such testimony is not an opinion, but a statement of a fact they know to be true from their medical knowledge. Appellant says that, if the testimony was admissible, then the court ought to have instructed the jury as requested by him:

“You are instructed that the corroboration required by law requires the proof of facts, and the mere opinion of medical experts alone is not such corroboration in law as will authorize you to find the testimony of Miss Simpson sufliciently corroborated.”

Article 806 of the Code of Criminal Procedure 1911, provides that in trials for perjury no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant’s statement.

Appellant had testified, on the trial of Henry Ethridge for slandering Miss Simpson, that he (appellant) “had had carnal intercourse with the said Minnie Simpson at a bridge west of Potosí” Miss Simpson testified on this trial that that statement was not true. That is one witness as to the falsity of the statement. Now, is she strongly corroborated? Pour doctors testify to examining her, and they and each of them swear positively that Miss Simpson had never had intercourse with any man. If that is not strong corroboration of her testimony, we do not understand how her testimony could be corroborated when appellant places himself and Miss Simpson alone at the bridge. The court, at the request of appellant, instructed the jury:

“Before you can convict the defendant, you must believe beyond a reasonable doubt that Miss Minnie Simpson is a credible witness, and, if you have a reasonable doubt as to whether or not she is a credible witness, you will acquit the defendant.”

And in the main charge had instructed the jury they could not convict appellant unless the falsity of the statement had been established by the testimony of one credible witness strongly corroborated. In addition to this, the fact that Miss Simpson’s reputation for truth and veracity was good was sworn to by a dozen or more witnesses, and that her reputation for virtue and chastity was good was sworn to by some twenty or more ladies and gentlemen residing in the community where she lived. So it is seen the state did not rely on the medical men alone to establish that she was a credible witness, or to corroborate her testimony, and under no phase of the case was the above special charge requested by appellant called for, and there was no error in refusing to give it.

However, appellant insists in another bill that the court was in error in permitting witnesses to testify that the reputation of Miss Minnie Simpson for virtue and chastity was good. Appellant called a number of witnesses who testified to facts, if true, which would have a tendency to show that Miss Simpson was not a virtuous and chaste woman. In fact, his defense was predicated upon the theory that what he swore to in the Ethridge trial was true, and he introduced witnesses to prove that Miss Simpson was the character of woman who would likely engage in such acts. Whether or not she was a virtuous girl was an issue in the case, and put into the case by the testimony offered by appellant, and it was in rebuttal of this testimony that the court permitted the state to introduce witnesses who testified that Miss Simpson’s reputation for virtue and chastity was good. In this case appellant by his testimony had attempted to prove that Miss Simpson was a woman of lewd and lascivious character, and, having done so, he cannot be heard to object to testimony tending to show that she was not that character of woman. This question was discussed by Judge White in Wilson v. State, 17 Tex. App. 583, and he there held that, when the defendant by his testimony had attacked the reputation of a woman for virtue and chastity, then the state in rebuttal could prove her reputation for virtue was good. Anri it has always been the rule in this court when the defendant by his testimony injects any issue in the case, material to the case on trial, the state can meet that proof by appropriate testimony. We discussed that question at length in Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 974, and cited the authorities in this and other states.

Appellant requested the court to instruct the jury that, before they could convict the defendant, the state must show that he voluntarily and willfully testified in the county court, in the case of Henry Ethridge, and, if they find that he was compelled to do so over his protest, defendant should be acquitted. The bill shows that the court approves it with the following qualification:

“Refused, because the uncontroverted evidence shows that, without having been subpoenaed, the defendant voluntarily came from his home in Callahan county to testify in the trial and behalf of Henry Ethridge in the county court of Taylor county, and did testify voluntarily without' process, and that it was only when he was asked, while on the stand, whether he had intercourse with Minnie Simpson, that he asked the court if he would be required to answer that question, and the court said, ‘Yes,’ whereupon defendant testified without further protest.”

As thus qualified, the court did not err in his ruling. The record discloses that appellant lived in Callahan county, and without being summoned voluntarily went to Taylor county as a witness and testified without having been served with any process requiring him to do so.

It is made to appear by the record that Sid Richardson, ás a witness for appellant, had given testimony damaging to the reputation of Miss Simpson for virtue and chastity. On cross-examination he was asked if he had not gone to the home of Miss Simpson’s brother and told him about making this affidavit, and that it was untrue, and that he was going to get the affidavit back. After such examination, so much of the affidavit was introduced in evidence as related to the matter about which he was cross-examined, when appellant desired to introduce the remainder of the affidavit, which related to a different matter. The court declined to permit the remainder of the affidavit to be introduced in evidence, his reasons for so doing he stated at the time being as follows:

“Mr. Stenographer, you will note that the state did not offer the affidavit until. counsel for the defense forced them to offer it in order to identify the affidavit concerning which the witness was talking to Miss Simpson on the night in question, when he stated that he would try to get the affidavit back, and the court sustained the defendant’s objection that the state would first have to show what affidavit was referred to; in other words, that the affidavit referred to showed the language which was then under investigation, to wit, that of going to the circus at Abilene, and it was only for the purpose of identification, and only for the purpose of showing that this particular affidavit was the one referred to, that the court permitted it to be introduced, and the part attempted to be offered by the defense now is not germane to any matter that was brought out in connection with the affidavit, or by any witness concerning the affidavit, and it would be — the court holds that this witness Richardson is here, and the court will permit counsel to interrogate him on this point if they wanted to. If they want to ask this witness any questions concerning Miss Minnie Simpson’s general reputation for •chastity and virtue, why the court will permit them to ask Richardson those questions if they so desire.”

The remainder of the bill relates to •questions propounded by the court to the witness Sid Richardson. Before asking the questions, the court had the jury retire, and the jury heard none of the questions and no .answer of the witness. After said questions had been propounded, appellant objected to the proceedings on the ground that it was calculated to intimidate the witness, as the questions were such as to lead the witness to believe that a prosecution for perjury might •be expected. The court states:

“The court understood from the state that they had finished their cross-examination with one exception, and that was to lay a predicate, and the state asked for time in which to go out .and speak to a witness before they laid that predicate. I understood that the examination was over. That is what he said, and during the recess, while the state’s attorney was out ■questioning the witness, the court took a recess and sent the jury out, and then made the examination that the record shows, and during none •of which the counsel raised any objection what•ever, and the court wants the bill to show that the jury was out and heard nothing of it, and that none of the questions which the court has asked the witness, the court will-not let the .state ask them. The court will not let the state .ask any question that the court has asked.”

As qualified, the bill presents no error.

The judgment is affirmed. 
      ©=mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     