
    RETTIG v. STATE.
    (No. 6329.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.
    Rehearing Denied Oct. 12, 1921.)
    1. Rape <§=46 — -Witness held properly permitted to testify as to condition of ground where assault was claimed to have taken place. ■
    In prosecution for assault with intent to rape, in which prosecutrix and her sister claimed to have been assaulted by defendant and another, a witness to whom the girls had told the particulars, and had pointed out the direction of the place where it had occurred, and who testified to having followed tracks of two girls and two men, could testify as to condition of the ground, grass, and underbrush, where it appeared that the place so described was the same place as that described by the girls.
    2. Witnesses <S=298i/2 — Court cannot require prosecutrix in rape case to subject herself to examination by physician.
    In prosecution for assault with intent to rape, in which defendant claimed to have had frequent intercourse with prosecutrix prior to the alleged assault, the trial court cannot require prosecutrix to be examined by physicians appointed by the court to ascertain whether she had led a virtuous life.
    3. Rape <9=59(23)— Jury should be instructed on aggravated assault only where issue is . fairly raised by evidence.
    The court, in a prosecution for assault with intent to rape, should instruct on aggravated assault only where the issue is fairly raised by the evidence. '
    
      4. Rape ®=»59(23) — Evidence held not to require instruction on aggravated assault.
    In prosecution for assault with intent to rape, evidence held- not to require instruction on aggravated assault.
    5. Criminal law <3=3938(1)— New trial on ground of newly discovered evidence properly denied.
    In prosecution for assault with intent to rape, denial of motion for new trial on ground of newly discovered evidence held proper where witnesses were present at the time of the trial, and where the testimony of two of the witnesses would have been inadmissible as hearsay, and the testimony of the third would merely tend to impeach the testimony of prose-cutrix.
    6. Criminal law <§=3?30(7) — Improper argument cured by instructions.
    In prosecution for assault with intent to rape, district attorney’s argument that the sister of the prosecutrix had also been knocked down and raped by defendant’s companion, if improper in that there was no evidence thereof, was cured by the prompt action of the court in stating that there had been no testimony as to such facts, and that the jury should disregard the argument, and in giving a written instruction to the same effect.
    Appeal from Distrct Court, Rusk County; Chas. L. Brachfield, Judge.
    Monnie Rettig was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    R. T. Jones, of Henderson, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for assault with intent to rape Allie Jordan, alleged to have been committed on or about the 16th day of April, 1919, and punishment was assessed at three years’ confinement in the penitentiary.

Allie Jordan and her sister Nancy were negro girls, and upon the day of the alleged offense had been washing for the family of Mr. Sam McKnight. About 1:30 o’clock in the afternoon they finished their work and started home, going through the fields. When about 200 yards from McKnight’s place, they met two negro men, the appellant in this case, Monnie' Rettig, and Harvey Johnson. According to the testimony of the two girls, both the negroes were armed with pistols, .and, with the pistols displayed, ordered the two girls across the field and into a strip of woods. This point was about 300 yards from the home of W. B. Harvey. Allie Jordan says that at this point the appellant threw her down, pulled up her clothes, pulled out his male person, and was getting on top of her; that she was struggling all the time, and that her sister got a stick and began to beat him, and that between her efforts and the efforts of her sister she got away from the appellant and ran towards Mr. Harvey’s house; that about the time she got loose from appellant Harvey Johnson caught hold of her sister and pulled her off to one side; that she, Allie, went to Mr. Harvey’s house and reported to him that a negro man was ruining her sister, and wanted him to go down and help her. She claims when she got loose from appellant he shot at her, and told her if she did not come back he would shoot her God damn head off.

The testimony of Nancy Jordan is substantially the same. She claims that, after Harvey Johnson took her away from where she was beating appellant, that he (Johnson) made an assault on her; that Abie got loose from the appellant by her help. She claims to have hollered for help, and says that’ Johnson got her down arid got on her head, and told her he would beat her God damn brains out. She further says that Mr. Harvey and another party came to where she was, and that Johnson was on top of her when they got there. This witness also says that appellant fired one shot after Allie had got away from him, and run off.

W. B. Harvey testified that Allie Jordan came to his house crying on the evening in question, and wanted him to go make Harvey Johnson turn her sister loose. He saw the appellant going through the field to the big road as Allie Jordan was coming through the field, and saw him get within a short distance of her, and he seemed to be saying something to her, but does not know what it was; that she did not stop or have any conversation with him. This witness went to where Nancy Jordan and Harvey Johnson were, and described the condition of the ground and grass as being wallowed down, as though there had been tussling or fighting. Appellant did not testify himself, but offered evidence to the effect that he and Allie Jordan had been exchanging letters, which was admitted by her, and showed by one witness that upon the day in question a note had been carried to her while she was at Mr. McKnight’s place, and that in reply to the note she had told the messenger to telephone appellant and tell him “Alright.” She admits getting the note while she was at McKnight’s, but disclaims having sent any message of any kind to the appellant. She also denied that there had ever been any improper relations' between her and appellant, but admitted that they were sweethearts, and that she had been writing to him and he to her for some time. The foregoing is a sufficient, statement of the facts, without going further into details.

Complaint is made that Mr. Sam McKnight was permitted to testify for the state describing the condition of the ground, grass, and underbrush where the alleged assault occurred, the objection being that no one pointed out to him the place, and that there is no sufficient evidence that the place he described was in fact the scene of the alleged offense. When we look to the record we find that the two Jordan girls had been washing for McKnight’s family the day of the alleged offense. Mr. McKnight and his wife were in town when it occurred, and heard about it on their return home. He says the girls came and told the whole thing; that where the girls told him they first talked to them (the negro men) was at a little branch near his (witness’) house; that he went the direction they said it occurred, and there were the tracks across the field, the two girls’ tracks close together, and the tracks of the two men; that he followed the tracks across to the next hollow, and there found the place he described. When we take the description of the girls as to their first meeting with the men, and their movements afterwards, and the location of the place of the assault, it leaves no doubt but that the witness was describing the same place mentioned by the girls, and we think no error'in this respect is disclosed.

While Allie Jordan was testifying, and in response to questions by appellant’s attorney, she denied that she had been meeting appellant and having intercourse with him, and asserted that she had never had intercourse with any man. Appellant’s attorney then requested the court to appoint three reputable physicians tio examine her, asserting that if such examination revealed that she was not virtuous it would support the theory that she had been theretofore indulging in sexual pleasure with appellant, and strongly tend to discredit her testimony, as to the alleged assault. We know of no rule of law that would authorize the trial judge to require a witness to subject herself to such an examination, or any right to enforce such an order, if made.

The court declined to charge upon aggravated assault, and appellant requested a special charge upon that subject, as follows:

“You are further instructed that, under the laws of this state, where an adult male commits an assault upon the person of a female, under such circumstances which would amount to only a simple assault were it committed upon another adult male, such assault amounts, under the laws'of this state, to an aggravated assault. And it matters not whether the intention of said adult male in making such assault upon the person of a female, is for the purpose of committing a battery upon the person. of such female, or whether the intention of the adult male in making such assault upon the person of such female is to forcibly, and against her consent, take liberties with her person, such as forcibly kissing her or embracing her. And in this connection, you are instructed that, if you should believe from the evidence that the defendant, Monie Rettig, on the occasion set out in the indictment in this case, he being an adult male, caught hold of the person of the prosecutrix, Allie Jordan, she being a female, against her will and consent, and thát he used force in so doing, yet, if you should further believe from the evidence that the defendant on such occasion did not do so for the purpose of forcibly raping or having carnal intercourse with the said Allie Jordan, then you cannot find him guilty of an assault with intent to rape, but only of an aggravated assault.”

Where the issue is fairly' raised by the evidence, the court should instruct the jury on aggravated assault, but where the evidence does not raise the issue such charge should not be given. For many cases collated, see Branch’s Anno. P. C. vol. 2, § 1712. No testimony was offered by appellant as to what occurred at the scene of the alleged offense. He did not testify. Therefore we must ascertain the facts from the two girls who were present. From their testimony there is left no doubt as to the purpose and extent of the assault and the intent with which it was made. Nothing in evidence would authorize the conclusion that appellant’s outrageous1 conduct was for any purpose short of a forcible copulation with proscutrix. His theory, as embraced in the requested charge, that the assault was for some less culpable reason, finds no support in the testimony, and was properly refused.

One error assigned is the failure of the court to grant a new trial on the ground of newly discovered testimony. All of the witnesses from whom such testimony was expected to be elicited were in attendance upon the trial, two of them having testified. There is no claim that they suppressed any information when interrogated about the case. There was simply a failure to ascertain by an investigation what witnesses present knew about the case. The affidavit of two of the witnesses attached to the motion for new trial show their testimony would be inadmissible, as it is hearsay, and undertakes to show what another party’s opinion was as to whether or not appellant was guilty. The affidavit! of the other witness goes only to impeaching testimony against prosecutrix. For the reasons stated above, we find no error on the court’s part in overruling the motion for new trial, where soughh for alleged newly discovered testimony. Williams v. State, 45 S. W. 572; Powell v. Stiate, 36 Tex. Or. R. 377, 37 S. W. 322; Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297.

The appellant, in his fifth bill of exceptions, complains that the district attorney, in making his closing argument for the state, said: “Nancy Jordan testified that Harvey Johnson knocked her down and raped her.” It appears that counsel for appellant at once objected to said remark, on the ground that Nancy Jordan had given no such testimony. A controversy seems to have then arisen between the district attorney and the judge as to whether such testimony had been elicited, whereupon the judge told the district attorney that there had been no such testimony from Nancy Jordan or any one else, and upon request instructed the jury to disregard the argument, and gave a written instruction to the jury to the same effect. If there was any error in the use of such language by the district attorney, the prompt action of the court, in our view, corrected the same, and we believe the bill of exceptions presents no error. Upon an examination of the statement of facts, however, we are not sure that the district attorney went very far afield in drawing the conclusion he seems to have drawn in making the statement complained of. We find that Nancy Jordan did testify that, when she was beating the appellant with a stick, undertaking to make him desist from his attack upon her sister, Harvey Johnson took hold of her and carried her off to one side, and that when she hollered for help Johnson threw her down and got on her head, and told her he would beat her God damn brains out. Further in her testimony it appears that Harvey Johnson laid his pistol down by his side, and she says when Mr. Harvey and Mr. McQuirter got to her that Harvey Johnson was on top of her, and that Johnson remarked, “Dar, now,” and got up. As the matter is presented in the bill of exceptions, we think no such error is shown as will require a reversal of tie case.

Having considered all matters of which appellant complains, we are constrained to hold that nothing is contained in the record that would authorize the reversal of this case, and the judgment is affirmed.

On Motion for Rehearing.

Appellant insists we were in error in holding that the issue of aggravated assault was not raised by the evidence, and that McCullough v. State, 47 S. W. 990, is decisive of the question. We have again examined the facts of the instant case in the light of the McCullough opinion, and are unable to bring ourselves to the conclusion that it should control in the present case. The learned judge who wrote in the McCullough Case did not undertake to set out all the facts, for we find this language:

“Other facts in connection with this matter, unnecessary to be stated, tend to show that, appellant may not, at the time, have entertained the intent to accomplish his purpose at all hazards, but merely that the assault was for the purpose of persuading the prosecutrix to have carnal intercourse with him.”

No arms were used in that case which would have excited fear. The entire record before that court evidently did not impress them as the facts in the present case appear to us.

Believing the proper disposition was made of the case in our former opinion, the motion for rehearing is overruled. 
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