
    Isaac Nichols v. The State.
    No. 9240.
    Delivered March 25, 1925.
    1. —Rape—Witness—Competency of a Child.
    Where on a trial for rape, it was not error to permit the prosecutrix, a child seven years of age to testify. The competency of a witness, is primarily a matter to be determined by the judge 'presiding, and his ruling will not ordinarily be overturned, unless it appears that in accepting the evidence the judicial discretion was abused. See Art. 788 C. C. P. Following Hawkins v. State, 27 Tex. Crim. App. 273 and other cases cited.
    2. —Same—Witness—Testing Competency.
    In testing the competency of a child witness the law permits the use of simple words, and does not demand that a child possess or comprehend a vocabulary, such as would be expected of an adult. The test applied is not the agé, but the intelligence of the child. The ability to give a clear and concise recital of the events, and knowledge, of the fact that falsehood will entail punishment are cogent factors supporting competency. See Underhill on Crim. Ev. Sec. 331. Following Valdez v. State, 71 Tex. Crim. Rep. 489 and other cases cited.
    
      3. —Same—Witness—Continuing Above.
    Where, on the examination of a child seven years of age, touching ner competency as a witness, she testified that she knew what the court was talking about when he told her to hold up her hand and swear to God that she would tell the truth; that she had been told to tell the truth, and had been told what it meant to be sworn, such witness was properly permitted to testify. The fact that a child has been instructed touching the nature of an oath, does not render it an incompetent witness. See Wharton Crim. Ev. Vol. 1, p. 745; 16 Amer. & Eng. Ency. of Law, 2nd Ed. p. 227; Anderson v. State, 226 S. W. Rep. 414.
    4. —Saíne—Child Witness.
    In the reports of this court are found many examples in which a child no older than the witness in the present case is shown to have sufficient knowledge and intelligence to render it a competent witness. See Carter v. State, 87 Tex. Crim. Rep., 299 and other cases cited, also Branch’s Ann. Tex. P. C„ sec. 1771.
    5. —Same—Evidence—Cross-Examination.
    Where appellant introduces a witness in his own behalf, and elicits from such witness testimony as to a transaction, it is proper for the state in cross-examination to prove by such witness the remainder of the transaction or conversation upon the same subject, and such witness may be recalled in rebuttal by the opposing party.
    6. —Same—Evidence—Clothing of Accused.
    Where on a trial for rape upon a child seven years of age, the state introduced the underwear of appellant, worn by him, at the time of the alleged assault, showing spots of blood on said underwear, there was no transgression of the rules of evidence. See Underhill on Crim. Ev., 3d Ed., Sec. 101.
    7. —Same—Evidence—Identifying Underwear.
    It was not error in this case to permit the witness Rosa Jackson to identify underwear of appellant, introduced in evidence as belonging to him. and the fact that the witness took possession of the underwear twenty-four hours after the assault, bore upon the weight and not the admissibility of the testimony.
    8. —Same—-Argument of Counsel — Held Proper.
    A complaint, in a case of this character, of the argument of state’s counsel, suggesting the death penalty, is not tenable.
    9. —Same—Charge of Court — Circumstantial Evidence.
    Where there is testimony on a trial for rape, by the prosecutrix, of the crime, as well as corroboration of her testimony a requested charge on circumstantial evidence is properly refused.
    Appeal .from the District Court of Jefferson County. Tried below before the Hon. J. D. Campbell, Judge.
    Appeal from a conviction for rape on a child seven years of age; penalty, ninety-nine years in the penitentiary.
    The opinion states the ease.
    
      J. D. Rose, for the appellant.
    
      
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   MORROW, Presiding Judge.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of ninety-nine years.

The subject of the rape is a child seven years of age. Prom her testimony the making of the assault by the appellant was established. There is much corroborative evidence coming from the doctor who examined the child and from the mother who examined her and some of her wearing apparel.

Appellant testified and denied the offense. He said that he had contracted a venereal disease which rendered him incapable of committing the offense.

Objection to the testimony of the child was made upon the ground that her youth and lack of knowledge disqualified her.

“Children * * * who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath, are incompetent to testify.” (Art. 788, C. C. P.)

The competency of a witness is primarily a matter to be determined by the judge presiding at the trial of the case, and his ruling will not ordinarily be overturned unless it appears that in accepting the evidence judicial discretion was abused. Hawkins v. State, 27 Texas Crim. App. 273; Charles v. State, 81 Texas Crim. Rep. 457; Anderson v. State, 88 Texas Crim. Rep. 307.

In testing the competency of a child witness, the law permits the use of simple words and does not demand that a child possess or comprehend a vocabulary such as would be expected of an adult. The test applied is not the age but the intelligers'-.e of the child. See Underhill on Crim. Ev., 3rd Ed., Sec. 331. The ability to give a clear and concise recital of the events and knowledge of the fact that falsehood will entail punishment are cogent factors supporting the theory of competency. Valdez v. State, 71 Texas Crim. Rep. 487; Anderson v. State, 88 Texas Crim. Rep. 307; Underhill on Crim. Ev., 3rd Ed., Sec. 331; Carter v. State, 87 Texas Crim. Rep. 299. The fact that a child has been instructed touching the nature of an oath does not render it an incompetent witness. Wharton’s Crim. Ev., Vol. 1, p. 745; 16 Amer. & Eng. Ency. of Law, 2nd Ed., p. 227; Anderson v. State, 226 S. W. Rep. 414.

Under an examination by the appellant’s counsel preliminary to giving the testimony, the witness said she knew what the court was talking about when he told her to hold up her hand and swear; that he told her to swear to God that she would tell the truth. She said she did not know how many years she had gone to school. She also said she had been going to Sunday School every Sunday. She testifled that Mr. Humphreys had told her to tell the truth; that he also told imr what it meant to he sworn. He told her that she. would go to the penitentiary if she did not tell the truth, but did not tell her what to say when she got on the witness stand. Prom the testimony of the witness on direct examination, w'e take the following quotations :

“After my mama left, somebody else come to the house; it was Mr. Nicholas. * * * Before Isaac como there, there was nobody in the house but me "and my little baby sister. I don’t know how old my little sister is. She can’t talk. She is a little baby. When Isaac come there, he took my little baby sister and put her on the bed and took me off of the bench and took me in the middle room. * * * After he put my little sister on the bed in the front room, he took me in the middle room. When he got me in there he shut the door. After he shut the door he throwed me down on the floor. After he throwed me down on the floor he tore my underclothes and got on me. * * * At that time my dress was over my head. He raised up my dress. * * * After he got me down on the floor he unbuttoned his pants and got on me. * * * After he unfastened his pants he got on top of me. I mean he laid down on top of me. I know that he took something out of his pants. He took something out of the front of his pants. After he took that thing out of the front of his pants, he got on me and put it in me. When he put it in me it hurt. I tried to cry and holler when he did that. I hollered. Yes sir, I hollered. Nobody heard me when I hollered because he put his hands over my mouth. I was laying down on the floor then. I could feel that thing that he took out of his pants in me. He kept, me down on the floor a while — a good while. * * ■ * The doors to the room was shut then. * ’ * * When he got through doing that to me he got up and fastened his trousers up again. He told me not to tell my mama what he had done to me for if I did my mama would beat us both ° * I was bleeding from between my legs after he got through doing that to me. * * * Isaac hurried me on back to school when he got through doing that. My mama did not come to the house before I left. I come home from school that evening about 4 o’clock. I bled some more that afternoon.”

In the reports of this court are found many examples in which a child no older than the witness in the present ease is shown to have sufficient knowledge and intelligence to render it a competent witness. See Mason v. State, 2 Texas Crim. App. 192; Hunger v. State, 57 Texas Crim. Rep. 384; Carter v. State, 87 Texas Crim. Rep. 299; Branch Ann. Texas P. C., Sec. 1771.

A full recital of the evidence of the child has not been attempted ; nor is it deemed necessary. No doubt is entertained that in receiving the evidence the learned trial judge acted well within the discretion vested in him by law.

After the prosecutrix gave the testimony which has been quoted, her mother was called by the State and testified that the appellant, at the time of the assault, occupied a room in the house of the witness ; that the date of the assault was on Thursday and the condition of the child was discovered by the witness on Friday morning following. The witness told the child that it was time to get up and go to school. When approached, the prosecutrix was complaining and groaning. The witness then insisted upon knowing what was the matter and receiving no answer, she examined the child and observed a quantity of blood upon her gown. Upon insisting on knowing the cause, the child said: “Mama, don’t whip me.” A doctor was called. Upon examining the child, he found that her vagina was lacerated and bruised. It appeared to have been rubbed. At the time of the examination, there was a slight hemorrhage. The doctor expressed the opinion as to the cause of the laceration and blood that it could have been brought about by contact with the male organ in entering the vagina. The age and development of the child would not have permitted a complete entry of the male organ of a man. The hymen was not completely ruptured but slightly so.

After receiving the testimony of the child, her mother and the doctor, the State rested its case. Appellant was then called as a witness and testified in his own behalf. He denied in to to the assault upon the child and declared that he was suffering from a venereal disease which made it practically impossible for him to have committed the assault. He stated that while changing his clothes he exhibited his privates to the witness Abney who made the arrest: that he had the conversation with Abney which is hereinafter detailed. According to the appellant, he had been living in adultery with Rosie Jackson, mother of the prosecutrix, but had ceased his relations for about a month before the occurrence in question on account of his disabled condition.

Appellant called the witness Abney, who, on direct examination, testified that after learning of the alleged assault, he went to the home of Rosie Jackson, mother of the prosecutrix; that the appellant was present, and the little girl, in the presence of the appellant, accused him of assaulting her. She was lying in bed. The witness asked her who did it. She was at first reluctant to tell but finally said the appellant who at the time was standing at the foot of the bed. Appellant then dropped to his knees and denied the assault, whereupon the witness arrested him. On cross-examination the witness testified that the appellant requested permission to change his clothes and did change them, including his underwear, leaving them in a certain room in the house. After the appellant rested his case, the witness Abney was called by the State in rebuttal.

In Bill No. 2 appellant complains that the witness Abney, when recalled by the State, was permitted to say to the jury:

“Yes, sir, I stated that the defendant, a few minutes after I told him that he was arrested, said that he wanted to change his underclothing.”

The witness said he observed nothing indicating that the appellant was afflicted with a venereal disease. The witness also identified the drawers produced at the trial as those which the appellant took off in his presence. The receipt of this evidence is attacked upon the ground that the appellant was under arrest; also that the introduction of the underclothing was inflammatory. The record does not specifically reveal that the drawers were introduced in evidence though counsel for the appellant drew out from the witness Abney that there were blood stains upon them. Before the witness Abney was recalled and before he gave the testimony to the receipt of which complaint is made, appellant, in his direct testimony, said that he was arrested ■ by Mr. Abney and at the time said to him .- “Will you wait until I change my clothing? Abney said: “Yes.” Appellant further testified that he did change his clothing in the presence of Abney; that he exhibited his privates to Abney, requested him to examine them and said:

“Mr. Abney, you see there; do you think a man could go with a woman in that shape much less going with a little girl; do you think anybody could go to a woman in that shape?”

As the matter appears - in the record, we are of the opinion that no error is shown in receiving the evidence of Abney in rebuttal. His testimony related to the same transaction and the same conversation as was put in evidence by the appellant through his own testimony and apparently would be admissible under Art. 811, C. C. P., in which it is declared that when part of a transaction or conversation is brought in evidence by one party, the law sanctions the receipt of the remainder of the transaction or conversation upon the same subject by the opposing party. The appellant having chosen to put in evidence his conversation with Abney after his arrest and his exhibition to Abney of his privates, thereby sanctioned the introduction of Abney’s version of the conversation and transaction. In receiving the underwear in evidence, there was no transgression of the rules of evidence. Underhill’s Crim. Ev., 3rd Ed., See. 101.

The spots upon the underwear were material for the reason that there was evidence from other sources that the prosecutrix was bleeding, and the blood upon the underwear of the appellant was a circumstance corroborative of the State’s theory as developed by the testimony of the little girl and as opposed to the theory of the appellant in which he disclaimed making the assault.

From what we have just said, it follows that in our opinion the testimony of Rosie Jackson as to the identity of the underwear of the appellant which was produced upon the trial was not improperly received. The fact that the appellant denied the ownership of the drawers was no obstacle to the State making proof that they belonged to him. . The fact that the witness took possession of the drawers some twenty-four hours after the assault bore, as we conceive it, upon the weight and not upon the admissibility of the testimony. Her evidence upon the subject was but corroborative of that of Abney to which reference has been made and was in rebuttal of the appellant’s testimony.

The complaint of the argument of State’s counsel suggesting death penalty is not tenable; nor is the complaint of the refusal of the charge upon circumstantial evidence. The child’s testimony was direct and the circumstances detailed by the doctor and others corroborative of her testimony.

Our examination of the record in the light of the carefully prepared brief of the appellant’s counsel leads us to the conclusion that the evidence is such as warranted the jury in their decision that the appellant was guilty of the offense charged, and that in the procedure nothing occurred which would authorize this court to order a reversal of the judgment. It is therefore affirmed.

Affirmed.  