GRAVES, Judge.
The offense is rape; the punishment assessed at death.
This is the second appeal in this case; the opinion delivered by the court on the former appeal may be found reported in 136 Texas Crim. Rep. 108, 124 S. W. (2d) 126.
It appears from the record that appellant made- a motion in the district court of Montgomery County (being the county in which the alleged offense was committed and the indictment returned by the grand jury) to quash the indictment on the grounds of race discrimination. It seems that the court heard evidence in support thereof and upon its conclusion overruled the motion. This motion, or one of similar import, was again urged after the venue of the case had been changed to Walker County, but no evidence, if ány was offered, is brought forward in the record; hence we are not in a position to review the action of the trial court on the subject.
The sufficiency of the evidence is vigorously questioned, and we set forth the whole of the prosecutrix’s testimony relative to the transaction:
“I hadn’t been asleep long when there was a negro waked me standing over me with a piece of pipe in his hand threatening me and he had the cover pulled off me. He threatened me by having a piece of pipe in his hand drawn on me and he called me and woke me up and said if I hollered he would kill me. The negro asked me where my husband was and then he told me not to lie to him and I was afraid to lie to him and he asked [234]*234me where my husband was and I told him because I was afraid that he was somebody that knew my husband and I told him where he was. He wanted to know where the children was and I told him where they were and then he asked me what my husband done and where he worked and what time he come in and all of those questions and just asked me a whole lot of questions. He had the pipe at that time. He told me what he was there for and asked gme if I was willing or not. Of course, I had to give up. I knew he had me trapped. I had to give up and told him ‘yes’ to save my life. He had the pipe in his hand at that time and he was up over me with it and he had an old quilt over his head and he didn’t have on any clothes more than a summer knit undershirt. I could only see from his waist down and his arm because he had an old quilt wrapped about him. He had no trousers on. One arm was holding the quilt and he had the quilt over his head and around his body and one arm through the hole in the quilt. The quilt was just an old rag that I had thrown away and it wasn’t any good. He threatened me and told me not to lie to him and I was scared to move or anything because I knew he had the ups on me; there wasn’t anything I could do about it. That was the reason I submitted to him. Yes, sir, this negro’s male organ penetrated my female organ. Yes, sir, it was against my will to submit to him. I had not seen this negro before that ravished me to my knowledge. I didn’t know whether I knew him or not. This occurred in Montgomery County, Texas. After he started having sexual intercourse with me he laid the iron pipe on the bed beside him where he could get a hold of it. When he started to leave he wanted to know if he could come back and I was scared to tell him he couldn’t because I was afraid he would murder me so I told him ‘yes,’ so he asked me when and I told him at any time except Sunday because I knew in reason he already knew my husband and knew where he worked and I was scared to lie to him so he asked me what time it was and how long he could stay and I told him he couldn’t stay because it was about time for my husband and I wanted to get rid of him and he said its not more than nine o’clock— after he asked me when my husband would come in and I told him anywhere from twelve o’clock on then he said it isn’t more than nine o’clock and I said ‘oh, my Lord yes, it was a lot later than that when I laid down’ and then I told him where the clock was and when he seen what time it was he broke and ran and when he ran out of the tent the first thing I thought of was shooting him and the gun was in the kitchen [235]*235and I ran to the kitchen to get the gun and it was unloaded and I had to climb up on top of the safe to get shells to load it with and by the time I got the shells he was too far in the woods and I ran to Mrs. Casey’s for help. That is my nearest neighbor. I went to Mrs. Casey’s just as quick as I could get the gun after he assaulted me and seen he was gone. Then I ran right up there. I was there in just a few minutes. There wasn’t anyone I could see then at Mrs. Casey’s but Billy Clark and her two children. Mrs. Casey lived about a 100 or 200 yards from my home. When I ran in Billy Clark was setting in the door where I went in and Mrs. Casey was standing at the cook-stove and I told them what happened and asked if they would go and get Mr. Hudson. Mrs. Casey and Bill Clark were the first persons I saw after the negro had assaulted me and I told them at that time what had occurred. All during the time I saw the negro he kept the quilt wrapped about him. I never did see his face at all. I saw the negro as I ran to the kitchen after the gun and he ran across the road in front of the house and when I went to get the shells from over the safe I glanced through the crack and saw him go over the fence in front of the house. He still had this quilt wrapped about him and hadn’t on any clothes that I could see. I don’t know where he had pulled off his clothes. I first knew the negro was in the tent when he threatened me and woke me up. The negro that ravished me weighed about 150 or 160 pounds. That is just an estimation; I don’t know. The defendant J. C. Lomax compares in height with that negro that ravished me and he was what I would call a medium black negro, the best I could tell in the tent as it was dark. I did not recognize the quilt that the negro had around him at that time.”
On cross-examination she testified to substantially the same facts. We quote from her testimony as follows:
“The first thing this person said to me was he told me not to scream or holler; that he would kill me. * * I didn’t have anything to defend myself with. * * He asked me was I going to be with him or not; was I going to let him have it or not; he said ‘are you going to let me have it or not’ and what could I say but ‘yes.’ * * I was afraid to lie to- him because I was afraid for my life.* * When he asked me would I be willing I told him I would because I knew I had to give up. * * His right hand was free at the time of the act, yes, sir. * * I told him he couldn’t stay and he wanted to know why and I told him my husband would be in before many minutes or I would have let [236]*236him stayed. I knew that if I would let him stay my husband could probably do "something with him but I wanted to get rid of him because I wasn’t certain when my husband would get in. * * He asked me could' he come back to see me before he got off of me; that was during the act. I told him he could because I was scared not to tell him he couldn’t. I was afraid I would contrary him and he would murder me. I told him he could come back any day except Sunday. * * I couldn’t swear that this defendant is the one I saw in my house. I had not seen that negro before that I knew of and as far as I know I have not seen him since. I couldn’t swear that this defendant is the person that was in my house that day and attacked me.”
The appellant’s confession was introduced in evidence, in part, as follows:
“I am 20 years old. I was 20 years old the 23rd day of last July. I live at New Caney, Texas, with my mother and stepfather. I have been living there about four or five months. I have been working at the saw mill there, for Mrs. Prince. On Wednesday of this week, the 30th day of March, sometimes in the morning I went with Mr. Roy, I don’t know his other name, out in the woods after a load of logs. I got with Mr. Roy at Mrs. Prince’s saw mill, and we went on down by the depot and on down by the negro school house and from there on across Peach Creek after the load of logs. Before crossing Peach Creek we passed by a tent house. In going, this tent house was to our right, about twenty fo,or from the road we traveled in. As we were passing this tent house I asked Mr. Roy if those fellows was still cutting logs. When I asked him this we had passed and was stoped down there cross Peach Creek bridge. When I asked about those fellows cutting- logs I meant the man that was living in this tent house, I didn’t know his name. I did know that he had been working for Mrs. Prince cutting logs. I went on over with Mr. Roy, where he waited for his log buncher to come. I sit there with him for awhile until I heard a truck coming. I told Mr. Roy that I was going back to Caney, then I got out there and flagged the truck down. Then Mr. Roy said, ‘no you ain’t going.’ The truck stopped and there were two white men in the truck which was loaded with ties. They let me get on the truck on top of the ties and ride on up to Caney. They let me off right on the railroad track near the depot. I got off the truck and went to my mama’s house and eat. I eat sirrup and bread. There was no one at home. I don’t know exactly what time it was around ten or ten thirty when [237]*237I eat at home. I went on down to the East of the saw mill, and passed between Mr. Chamber’s house and the saw mill, and then on down to the negro hall. There I crossed a- bob wire fence between the negro hall and Mr. Kheinhardt and then went on through the field and crossed a bob wire fence again and then on into the woods. I went on down a trail beside of the fence about three hundred yards. I got over the wire fence and crossed over the same road that I had traveled that morning with Mr. Roy first and then with the two white men with the load of ties. I crossed this road right in front of this tent house and went on up to the tent house. I didn’t see anyone around there, then I peeped in the tent, and there was a white lady there in the bed asleep. I then walked around to the back of the tent; I seen some children playing up at a neighbor’s house. While I was around there a little dog barked. He was black and looked to be a puppy. I went back around in front of the tent, I meant to say the side of the tent close to the Magnolia tree, and got a quilt that was laying there on the ground. Then I got a piece of iron pipe. I see that piece of pipe there and it is the piece of pipe that I picked up out in the yard. I then took off my hat and put it in my pocket and put the quilt over my head and pulled off my pants and shoes and put them under the corner of the tent. I then went on in the house. I entered the tent at the door next to the road and in going in the house I didn’t keep up any noise. When I entered the house I had the quilt over my head and part of my body. I could see through a hole in the quilt. I also had the pipe in my hand. When I went in I saw a trunk to my right and a dresser to my left or that is what I took it to be. I don’t know for sure if it was a dresser. The bed that this lady was in was up in the comer of the tent nearest to the kitchen. The kitchen is separate from the tent house. When I got in there she was still asleep. I walked on up to the bed and was still covered up with this quilt and still had this iron pipe in my hand. I touched the lady on the hip with my other hand. She woke up after I touched her, and I told her not to run nor holler. Then I asked, ‘How about some?’ and I then said ‘are you going to or not,’ and she said, ‘yes.’ When I got in the bed with her I put the pipe down beside of me. She was in about the middle of the bed, and was laying straight up and down in the bed. She had her clothes on, but her shoes were off, and she was covered up, that is the cover come up to about her breast. She moved the cover back, and then I got on top of her and then I put my peter in her pussy and stayed on her until I got through. While I was on her I asked her where her husband
[238]*238was at. She told me he was cutting logs for Mrs. Prince. Then I asked her if I could stay any longer. She told me no that her nusband would be in at twelve o’clock. I told her that I didn’t «■Jhink that it was more than about nine o’clock. She told me -hat it was five minutes till twelve then. I then asked her when -i could come back to see her. She told me that I could come oack any time except Sunday, that her husband would be there then.
“When I was leaving I told her not to tell anyone. I still had the quilt over me when I left. I left the iron pipe on the bed. When I went in the house I had on an undershirt and this polo shirt, which has no sleeves.
“I went back , out at the same door that I entered and after I got on the outside I got my clothes from under the corner of the tent, where I left them, and then I run across the road and then in the woods. After I crossed the fence I slipped in some mud. After I got out in the woods from the house I threw the quilt down and then put my clothes on, and went on to the saw mill. Just before I got to the saw mill I heard the twelve o’clock whistle blow. When I got to the saw mill I saw Van Wiley and Poor Boy Wiley. I stayed there until Mr. Jesse Johnson came there. He said a colored man had raped a white woman and asked me where I had been. He said that he could give account of all of them that was working there except me for I wasn’t there. I said it wasn’t me for I had went to the woods with Mr. Roy on the truck.”
Roy Butters testified that on the day of the alleged offense, about 9 o’clock in the morning, the appellant was with him in a truck, and they passed the tent house where Mrs. Stanford, the complaining witness, lived, and appellant asked him who lived in that tent house, and he told him Butters’ log cutter (Stanford), and soon thereafter appellant got off Butters’ truck and went back to town, such road back to town leading by the Sanford home, about a mile from town.
Billy Clark lived at Mrs. Casey’s about 400 yards from Mrs. Stanford’s home. He testified that she came to- his home excited and hysterical, in her stocking feet, and told him that she had been attacked by one whom she thought was a negro; she told him to get the officers. He got the constable and went to the Stanford home about thirty minutes after she came to his house,- and they found the bed messed up, and an iron pipe [239]*239lying on the bed. They later found an old quilt lying about a hundred yards from the house. They also found some footprints, and some shotgun shells, and at the time Mrs. Stanford came to the Casey house she had a double-barreled shotgun, unloaded and unbreached. The footprints led out from the house and were plain, and they were followed for about one hundred yards into the woods, and they also found a hand-print on the ground there, it looking like some one had fallen down. We quote a portion of Mrs. O. B. Casey’s testimony:
“I lived near the Stanford home on March 30, 1938, out back of it. On the morning of March 30, 1938, I saw her about 12:05 when she came to my back door and called me and she saw Billy Clark in the room and she went to talk to him and told him that a negro had attacked her with a quilt wrapped around his head. She just had on a print dress and was in her sock feet and a shot gun that was unbreached. She seemed to be scared. Billy Clark went after Mr. Hutcheson, the constable. She stayed at the house until Mr. Hutcheson and Clark got back, with me. She took a douche while she was there and we then went back to her home. We found two shotgun shells between my home and the Stanford jiome that she had tried to put in the gun.”
Mr. Hutcheson, the constable, testified that a few minutes after 12 o’clock of the day of this alleged assault he went to the negro quarters, and then to Mrs. Stanford’s home, and there found a piece of iron pipe lying on the bed, and that he found some tracks and followed them and found where the tracks had slipped in the muck, and the person making same had fallen on one knee, and about twenty-five yards from where he last saw the tracks he found the old quilt offered in evidence.
Mr. W. H. Brady, foreman at the sawmill where appellant was employed, testified that on the day of the alleged offense about 6:15 the appellant came to the mill, and at such time and prior to such time the officers and neighbors had been using dogs — presumptively blood hounds — in this matter; that when he saw appellant he was up on top of the boiler, about seven feet from the ground. Upon being accosted and asked what he was doing up there, appellant said he didn’t want the dogs messing with him; upon being told to get down off that boiler and fire it up, he did so.
[240]*240The quilt that was found along the footprints and identified by Mrs. Stanford as the one belonging to her, and that had been used for the dogs to sleep on, was introduced in evidence and showed to have holes in it, and the appellant was shown to have some hair in his head, identified by a witness as dog hair.
Mr. Johnson, whose wife was the owner of the mill where appellant worked, testified that during the night, while the dogs were running, he saw the appellant lying down on the edger table; appellant said he had been listening to the dogs; he didn’t like them; he was scared of them; that he had no confidence in them; they might trail him up, at which time appellant had an open knife in his hand. The witness asked appellant “what he was doing with that knife and he said he was scared of those dogs; he didn’t have any confidence in them and they might come up- and trail him.”
All standards of life are not the same; some people act from one impulse, some from another. Evidently Mrs. Stanford was not expecting appellant’s visit, nor was same prearranged. She did not know appellant, nor did he know her. He had, however, inquired who lived in this tent house, and ascertained the fact that Mrs. Stanford’s husband was a log cutter, and doubtless reasoned therefrom that he was cutting logs in the woods. Soon thereafter he abandoned his intended journey and came back in the general direction of her home. He prepared himself for a rape by force and threats by taking off his clothing, covering his head with this old quilt, and possessing himself of an iron pipe about 36 inches long. Mrs. Stanford was asleep, sick in bed, a victim of pellagra, and as he approached her he awakened her in a threatening attitude, and with an express threat to take her life if she screamed or hollered.
Faced with such a momentous decision, it lies not in this court’s judgment to say that she should have pitted her puny strength against his, armed as he was with such a weapon, and thus given up her life to protect her honor from what her judgment told her was the ravishment of her living body. Instead she took what probably seemed to her to be the only method of saving her life.
Upon the accomplishment of her ravisher’s purpose, her conversation only evidenced the' carrying out of her purpose of the preservation of her life. Immediately upon being relieved [241]*241of his threats, she ran in her stocking feet to her neighbor’s home about four hundred yards away and gave the alarm, carrying with her a useless shotgun. That this act was done without her consent is plain to our reasoning. Why, if she had consented thereto, did she run to the neighbor’s and give the alarm? Why take a shotgun with her? Why say anything at all if she had consented thereto ? Why not hide her indiscretion rather than immediately inform on her ravisher?
Again, if appellant thought his act was consented to by Mrs. Stanford, why the disguise? Why the running away from the tent house? Why the presence of the iron pipe in his hand, and left on the bed?
Rape can be committed on a woman by either force, threats or fraud. See Art. 1183, P. C. “The threat must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.” Art. 1185, P. C. Under the rule as laid down by the above quoted article we think that the threat, accompanied as it was by the exhibition of such a lethal weapon, would be sufficient to measure up to the above statutory requirements. We think the testimony is sufficient to sustain this verdict.
Bills of exception Nos. 1, 2, 3, 4 and 5 have been examined by us and without further discussion are overruled, there being no error evidenced therein.
Bill of exceptions No. 6 is based on the testimony of Mr. Holliday, a Texas Ranger, who testified, in substance, that he saw the quilt that was introduced in evidence; that it had dog hair on it, and there was some dog hair also on the appellant’s head; that he had seen and owned dogs all his lifetime, and there were two dogs around the (Stanford) place, and these hairs on the quilt and in appellant’s head were dog hairs. The main objection thereto was that the witness had not qualified as an expert. We think the objection went more to the weight rather than to the admissibility of the testimony.
Appellant’s bill of exceptions No. 7 claims a misconduct on the part of the jury in that it is alleged that they were allowed to separate during the trial of the case. It appears from the testimony that during the trial of the case, and while the court was in recess, the jury was taken to a barbershop where [242]*242some of them were shaved by a barber. It also seems that all the jury were kept together; however some of them were standing inside the shop and some around the open door just outside but all in a rather compact group, and in sight of each other, and in sight and hearing of the officer in charge of the jury. It also appears that at one time an outsider, Mr. Randolph, passing the barbershop, spoke to one of the jurors and asked him if that was the jury, and if they still had the case. This outsider said that the juror merely said “yes”; however it is denied by the juror that he said anything at all. The officer says that the jurors were together, and not more than ten or twelve feet from each other and the ones in the barber chairs at any time, nor did the officer see anyone of the jurors reading a paper, nor hear them nor see them talking to any outsider. When the juror was spoken to by Mr. Randolph he merely answered by shaking his head. The barber testified that there was no conversation between a juror and any outsider. Others testified that they saw the attempted conversation between Mr. Randolph and the juror, and the officer stopped Mr. Randolph before any answer was given. Another barber present part of the time the juror was being shaved said there was no conversation with any of the jurors while he was in there by anyone.
The trial court heard the evidence and evidently found that there was no basis for the allegation of such misconduct on the part of the jury, and we think his judgment thereon should not be disturbed.
Appellant complains, in his objections to the court’s charge, because of the fact that the indictment charged the rape herein to have been committed by force, threats and fraud, that it was incumbent upon the part of the trial court that all three methods of thus committing this crime should have been charged conjunctively and thus proven. We do not thus interpret the law. There are three methods of committing a rape on a female, either by force, or by threats, or by fraud, and in this instance the trial court gave a separate charge on force, and a separate one on threats, using the statutory definition thereof. We think such a charge correctly presented the law thereon. A rape can be committed by both force and threats combined. See Sharp v. State, 15 Texas Crim. App. 171.
Appellant further objects to said charge of the court because of the fact that in such charge the trial court uses the [243]*243term “violently ravish” and have carnal knowledge of Mrs. Gertrude Stanford, etc. Such a term was doubtless used by the court in an excess of caution, and was probably giving the appellant more rights than he was entitled to, and we can see no injury to his rights because of such charge. Violent means with force and strength, and since, as held in the Sharp case, supra, a rape can be committed by both force and threats, such a phrase, though possibly unusual, would place a greater burden upon the State than was necessary, especially under the facts of this case, and such would not operate as an injury to this appellant.
The court’s charge we think was fair and full relative to the voluntary character of the confession of the appellant, and we overrule all objections to such portion of said charge.
While Mrs. Stanford did not resist this attack to the death, yet taking into consideration the fact that she was a victim of pellagra, and was of a strata in life that called a tent house in the piney woods her home, it lies not in this court to say that she consented to this act of intercourse with a strange negro, who at least prepared himself to commit a rape upon a defenseless woman. Taking under consideration all the surrounding circumstances of this case, we are impressed with the idea that this unfortunate lady was the victim of the unbridled lust of this man, and probably pursued the only course left open to her to preserve her life.
This case was carefully tried, and appointed counsel seem to have zealously preserved all the rights of appellant in this trial. We have carefully considered all the bills of exception presented, and we find no error therein.
The judgment is affirmed.