Appellant was convicted of the rape of a girl under fifteen years of age, and his punishment assessed at the lowest authorized by law.
The indictment is in strict accordance with the statute defining the offense (P.C., art. 1060) and follows the approved standard forms. The court committed no error in overruling appellant's motion to quash it.
The testimony established some of the material points without contradiction or contest. Some points were contested, and there was contradictory testimony on some of the material points, and there was some impeachment of some of the witnesses. However, with the positive and circumstantial evidence and the reasonable and legitimate deductions which the jury were authorized to draw and believe therefrom, the State's case was fully established by a considerable preponderance of the testimony. Strange to say, Zollie Jones' mother and father were decidedly hostile to the State and in appellant's favor and avoided testifying against him, and testified in his favor, in any and every way they could, and she herself at first was. It is manifest from the whole testimony that, after it was made known to the officers that appellant had probably committed the alleged offense, he sought to get possession of the girl, and did what he could to get her mother and father in possession of her, so that he could marry her, — not in good faith, but to successfully prevent her testifying, and his prosecution and conviction, and, doubtless, if he, or they, could have succeeded in getting possession of her, he would have pursued this course successfully. However, when the officers and the Humane Society of Austin were made aware of appellant's and her parents' intentions, they proceeded
to send the girl to a convent in San Antonio and thereby prevented them from getting her and carrying out their plans. Her father or mother went so far as to sue out a writ of habeas corpus before the judge of the Criminal District Court of Travis County and have her brought back to Austin for a hearing. As soon as she was brought back the district judge, being made aware of the situation, placed her in the custody of a trustworthy woman in Austin and forbade access to her by appellant, her mother and father and appellant's attorneys, except in the presence and control of the judge. But the judge, upon the application of appellant's attorneys, in his presence, permitted access to her so that they could, and did, get all necessary or proper information about witnesses in appellant's behalf. It was also contended by the State, and there was testimony supporting its contention, that appellant also attempted, and in a manner was about to succeed, in spiriting away some of the material witnesses to avoid their testimony and secure an acquittal on his trial. Zollie testified that, at the time appellant had with her the interview at which her friend, Agnes Watson, was present, he then tried to get her to stop the case, and Agnes at his instance also tried to get her to do so. She said: "Mr. Miller said that, if I would stop it, he would pay us any amount of money and get us anything we wanted. . . . He said it did not matter how much." Appellant and Miss Watson denied this. She further testified that he gave Agnes money at that time and sent by her money to Zollie's mother, and also that he bought, or promised to buy, Agnes a dress costing $18. In trying to get Zollie to leave she said, appellant "said if I wanted to leave he would buy me a ticket anywhere I wanted to go." Appellant was arrested on complaint charging this offense in April, 1915, and released on bail. The grand jury convened in June following, and the indictment herein was filed June 10, 1915. His case was set for, and his trial began, on June 28th and was concluded and the verdict rendered June 30, 1915.
From all the testimony and legitimate and proper deductions therefrom, we will state substantially what the evidence clearly justified the jury to believe.
Appellant was an unmarried man, thirty-six years old. Continuously since 1900 he had been in the saloon business in Austin; several years previous to this offense, in business for himself. During all this time he had his room where he stayed and slept at night, eating at restaurants and around wherever it suited his convenience. He kept and himself attended two horses belonging to him some blocks from his saloon, going back and forth for this purpose three times a day. Zollie Jones, the alleged raped girl, lived with her parents in a house which appellant had to pass in going back and forth attending to his horses. In that way, some two months before he committed the alleged offense herein on April 1, 1915, he saw this girl and became acquainted with her parents. Her parents were very poor people and so was she. They had nothing and did not work, except at this time they were running a boarding house and taking some roomers. It was the theory of the
State, and borne out by the testimony, that appellant's lustful passion became aroused by seeing this girl from time to time and he set about to ensnare and ruin her. For that purpose he boarded with her parents for a month or two up to just before this offense was committed; and, although he kept his room as he had theretofore, he proceeded to sleep at her parents' house for about a week. During this time he was boarding and sleeping at this house, he ingratiated himself into favor with the girl and her parents, too. He began surreptitiously to get the girl to meet him in town away from her home and parents, and he took her buggy riding, both in daytime and at night, and when returning he would not take her to her home, but drop her out near there. The girl, Zollie, was then just a few months over fourteen years of age and several months under fifteen. She testified positively that on one of these buggy trips in daytime he took her in South Austin to a secluded place off from the road and not in sight from any residence, and accomplished her ruin, having complete sexual intercourse with her, on or about April 1, 1915. (She testified to two other acts by him, but this was excluded on his insistence.) The girl missed her menses and concluded she was pregnant by him and so informed him. At this time they met at night away from her home by appointment, it seems, to discuss the situation. The girl had had a confidential talk with a close girl friend of hers, and she had that girl friend to be present at this meeting. That girl friend, Agnes Watson, testified that in this interview appellant admitted and stated to her that he had had sexual intercourse with this girl, as claimed by her, and the girl testified that appellant in substance agreed to furnish the "stuff" to bring her menses on. Shortly before this illicit intercourse was had and up to that time appellant made her presents of money and of different articles of wearing apparel, among them a nice cloak, a nice dress and other articles. Appellant admitted giving her said gifts of clothing, but denied positively that he ever had sexual intercourse with her at any time or place. The girl, however, was strongly corroborated by other facts and circumstances fully proven. We think it unnecessary to here give any further detail of the evidence.
The record is quite voluminous. Appellant has twenty-six bills of exception, some of them very lengthy. The court in approving several of them qualified and explained them. Appellant bitterly complains of this action of the court, claiming that at no time when he took his bills of exceptions did the court then state that he would qualify them, or how he would qualify them, in approving them. We have carefully examined the record and the court's qualification of these several bills. The court's action in every instance is borne out and in accordance with the record. It is true that in some instances injustice may be done an appellant by the trial judge in qualifying his bills, but we think in this instance no material injustice has been done appellant. It is not only proper, but necessary, in a great many instances for the trial judge to explain and qualify bills so that this court in reviewing the question can more readily comprehend the point; and, in fact, it
not only aids this court, but in most, if not all, instances, it is necessary to make such corrections and explanations so that the true point raised can be seen and passed upon, and not an incorrect one from the record. Of course, he can not tell at the time of the exception whether he will qualify the bills. He can only know this when the bill is presented.
We have carefully read and studied each of appellant's bills of exceptions and the record in connection therewith. It will not be necessary to take up each bill separately, but we will in some instances group, but upon the whole include all of them raising any material question.
Appellant made a motion for a continuance on account of the absence of numerous witnesses. The qualification to appellant's bill on this point shows, and so does the record, that all of the witnesses appeared in court pending the trial and were placed under the rule with the other witnesses, except Curley White and Tom Knight. The qualification of the bill as to them states that "their testimony does not appear material, as it was upon the question of credibility of Zollie Jones. Further, that Knight lived only thirty-six miles from Austin, and White lived in Austin. The diligence was not sufficient." The record shows that the subpoena for these two witnesses was not issued until June 25th, just two days before the trial. The sworn return of the sheriff of Williamson County, to which the subpoena was issued for Knight, shows that Knight had left that county three or four months before. Clearly the court's action in overruling his motion for a continuance was correct. No diligence whatever was used to procure the attendance of these witnesses. Stacy v. State, 77 Tex.Crim. Rep., 177 S.W. Rep., 115.
He has a number of bills of exceptions to short portions of the testimony of Zollie Jones and some to the exclusion by the court of like short proposed testimony by her. His second bill is a sample of these, and we will give it substantially in full. After the style and number and court and the usual "Be it remembered," this bill shows that, while Zollie Jones was testifying in behalf of the State, on cross-examination, this occurred: "By Mr. Dickens: Q. `I will ask you if you did not tell this defendant here, Mr. Kinney Miller, that you had married Will Clemens and that you were over age?' Judge Hamilton: `We object to that.' The court: `The objection is sustained.' Mr. Dickens: `We except to the court's ruling. We want to show that one of the reasons he ever went with her was that she had explained to him that she had been married and was divorced from her husband.' The court: `I understand.' Mr. Moore: `It will be offered on another ground, as being a declaration of herself as to her age.' The court: `The objection is sustained.' To which ruling of the court the defendant, by his counsel, then and there in open court excepted and took this bill of exception, which was allowed and ordered filed." The bill does not show what the witness would have testified, and on that ground alone it fails to show any error; but, even if she would have stated that she
told appellant she was over age, it would have been wholly immaterial. He got the lowest punishment. Martin v. State,73 Tex. Crim. 546; Robertson v. State, 51 Tex. Crim. 493; Whitehead v. State, 61 Tex.Crim. Rep., and a great many other cases. The fact, if so, that Zollie had been previously married would be immaterial, for, if not appellant's wife, if she was under fifteen years of age, he would be guilty of rape, notwithstanding she had been married and was even then married, under the very provisions of the statute, P.C., art. 1063; Smith v. State, 74 S.W. Rep., 557.
Appellant has another lot of bills on the same subject matter. Some of them are quite lengthy. It is unnecessary to take up each separately. We will make such statement of them so as to show the question raised, applicability to the facts of the case, his objections and the court's ruling and action; Zollie Jones testified on his cross-examination of her that no man other than appellant had ever had any act of intercourse with her. Then he in substance asked her if she had not been out riding, and at night, with various other persons, naming them, and if she had not met another person, or persons, at night for the purpose of, and actually had, sexual intercourse with them, designating the places and persons, and that she had gotten from different men money at different times. The State not only objected to these questions and to her answering them, but also objected to all that character of testimony by these various men and parties to impeach her, claiming that such matter was wholly immaterial, and in substance she could not be impeached by such testimony. The court at first sustained the State's objections and would not permit the witness Zollie Jones to be so asked nor to answer, and also held that acts of intercourse with other men, or evidence tending to show that was inadmissible. However, during the further progress of the trial, he concluded that he was mistaken in his ruling and so held and announced to appellant and his attorneys, and in approving each of his said bills on that subject did so with this explanation and qualification: "The court at first held that the defendant could not show other specific acts of intercourse on the part of the prosecutrix (she being under age of consent) but subsequently reversed his ruling and held that the defendant could prove specific acts with other parties, and could introduce any testimony as to the general reputation of the prosecutrix as to her chastity or veracity. The defendant objected to any act of intercourse but one act with Miller. The court sustained the defendant and would not permit the State to prove but one act of intercourse with Miller." In addition, appellant has a bill (No. 25), in which it is shown that the court during the progress of the trial explained fully in effect that he had concluded that he was in error in refusing to permit Zollie Jones to be asked and answer such questions; and that she could be asked and required to answer such questions; and in addition he fully explained that he would admit specific acts of carnal knowledge by her with any and all other persons other than appellant and any testimony they would introduce tending to show that she had
had such acts with others, and all of the testimony on that subject that he had at first held was inadmissible. The bill shows what appellant claimed the court said and the colloquy between him and the appellant's attorneys fully. All of which occurred in the presence and hearing of the jury. The court in approving this bill, No. 25, qualified it as follows: "The defendant did not except to the ruling of the court as stated in the bill, no exception was taken after the court had reversed his ruling and stated that it would permit the defendant to show other acts of intercourse with Zollie Jones by other parties. The court stated that he would permit the defendant to show any act going to show that Zollie Jones had intercourse with other men and that the defendant could, if he desired to do so, introduce testimony as to the general reputation of Zollie Jones for being unchaste, or as to the general reputation for veracity. The defendant never after the court had thus ruled offered any witness to prove either of these facts. No request was made by either the defendant or the district attorney to retire the jury and no objections whatsoever was made to what occurred." Whether the court's ruling was at first right or wrong, and whether or not his last ruling was right or wrong, neither any nor all of his bills on that subject show any reversible error.
Appellant has another lot of bills, which show this substantially: On his cross-examination of Zollie Jones he asked, and had her to testify, that she had told him she married Will Clemens while living with her parents at Hairm, in Kaufman County, some year before the offense alleged in this case was committed. She swore that she did not tell him this at all until some time after the act of intercourse she had with him. And it further developed that a few days before the trial, when they had her before the judge seeking information as to the names of witnesses, she in effect told the residence of the Will Clemens she had married, and that a preacher by the name of McQuerter married them, and that she had a confidential and special friend there by the name of Miss Lillie McCray, who knew about the marriage, was present, etc. While Zollie Jones was testifying on cross-examination, there was produced before her from Kaufman County a witness by the name of Will Clemens; another, a preacher, by the name of McQuerter, and a Miss Lillie McCray, who had been subpoenaed by appellant. She was then asked if these were the three parties, the man she had married, the preacher who married her, and the confidential friend, etc. She swore positively that neither of them were these respective persons. Later appellant severally introduced these witnesses, and they respectively denied — Clemens that he had ever married the prosecutrix, McQuerter that he had ever performed the ceremony, and Miss McCray that she was a confidential friend or had any knowledge on the subject. All this was for the purpose of attempting to impeach Zollie Jones. All this occurred before the jury, the jury heard it all and saw these respective witnesses, etc., the court excluded their testimony and instructed the jury not to consider it, because immaterial. We think the
action of the court was correct: (1) Because it was an immaterial matter on which she could not be contradicted. Branch's Crim. Law, sec. 867, and authorities cited by him. (2) The positive testimony of Zollie Jones showed that neither of these three witnesses were the party she had married, the preacher who married her or the said confidential friend. Hence, there was nothing for the State to contradict by these several witnesses, because they swore to exactly the same thing in substance that Zollie Jones swore about it, and the court correctly withdrew the testimony from the jury and told them not to consider it. Williams v. State, 24 Texas Crim. App., 637; Lewis v. State, 15 Texas Crim. App., 647; Hyden v. State, 31 Tex.Crim. Rep.; Roberts v. State, 70 Tex.Crim. Rep.; Currie v. State,72 Tex. Crim. 463.
As stated, the father and mother of Zollie Jones were hostile to the State. The State, however, had used them as witnesses before the grand jury to indict appellant. Perhaps one or the other had also been used as a witness in the examining trial. Before the grand jury they gave material testimony against appellant in behalf of the State. Their testimony was taken down in writing and signed by them. When the State introduced them on this trial her father went so far as to fail or refuse to testify until the court punished him for contempt and sent him to jail. When each of them did testify they, in material points, testified in favor of appellant and contrary to what their testimony was before the grand jury.
When this occurred in the instance of each of them, the court permitted the district attorney to ask them some leading questions and to show them their sworn testimony before the grand jury and then therefrom ask them respectively if they did not testify so and so, quoting from their statement before the grand jury on material issues. They admitted some of them but denied others. The court committed no error in his ruling in this matter, as complained of in appellant's bills Nos. 20 and 21. It is well established in this State, both by the express provisions of the statute (C.C.P., art. 815) and the decisions noted thereunder and by Judge White also in his Ann. C.C.P., under the same article, that either party can attack the testimony of his own witness when his testimony is injurious to his cause, in any manner except by proving the bad character of the witness. It is also well established that the memory of the witness can be refreshed by having his attention called to, and being shown, his testimony on a previous occasion. Branch's Crim. Law, sec. 865; Mischer v. State, 69 Tex.Crim. Rep.. And the testimony of such witness taken before the grand jury can be used for that purpose. On this point, the court gave appellant's charge as follows: "Gentlemen of the Jury: You are charged that any statements made by the witnesses Mrs. Jones or Mr. Jones before the grand jury can not be taken as testimony against the defendant, as you are only to be governed by the testimony as sworn before you on the trial of this case."
In another bill (No. 23) appellant objected to this only on account
of the district attorney's argument, viz: "Miss Watson meets this little girl over there in Wooldridge park, and she tells her something. What do you think — is there more than one act?" In approving this bill, the court did so with this qualification: "This remark of the district attorney was made in reply to the argument of defendant's counsel, who said that Miller himself testified that he had taken Zollie Jones out riding several times and that the State had only shown one act." In addition to this, the record shows that Zollie Jones in Wooldridge park did have a confidential conversation with Miss Watson, and that thereupon they both afterwards saw appellant, and Miss Watson testified that appellant admitted to her that he had had sexual intercourse with Zollie. Miss Watson also testified that she met Zollie in said park, and that Zollie confided to her and talked with her about an hour, and that afterwards she and Zollie met appellant and talked to him about his having sexual intercourse with Zollie, as shown above. In this character of case, that more acts than one can be proven is the settled doctrine of this court, decided in Battles v. State, 63 Tex.Crim. Rep., and a large number of cases since following it. At appellant's instance, the court erroneously refused to permit the State to prove more than one act. That would not prevent the district attorney from making the argument above stated based on the inference to be drawn from the evidence in the record. We think this argument by the district attorney was legitimate, and in no event shows any error.
The other questions herein are shown by appellant's thirty-ninth ground for his motion for a new trial and his bills Nos. 19, 22 and 24. The questions raised thereunder are so connected and interwoven we will state them together. They are very lengthy — too lengthy to copy. We will state them in full, and also the testimony of jurors on the hearing of the motion for a new trial.
In his motion for new trial he alleged that some of the jurors in considering the verdict went out of the record and discussed facts and matters not therein, claiming that he could not then give their names but would prove his allegation on the hearing of the motion. Alleging further that they considered the facts introduced about his raping other girls and in regard to Rosa Duffey, which the court had withdrawn from them and instructed them not to consider. And he asked that the jury be summoned to testify on the hearing of said motion so that he could prove by them said allegations.
The court had eleven of the jurors present on hearing said motion. One was absent. No point, however, was made because of the absence of that one juror. Eleven were enough. The appellant then introduced J.L. Nutt, the foreman, who testified substantially that soon after they went in the jury room to consider their verdict they voted on the question of his guilt, ten voting that he was guilty and two that he was not. That thereupon they discussed the case and the evidence, and without having any other vote they all agreed that he was guilty. The other two, who had at first voted not guilty, changed to guilty. That they then in discussing the penalty to be assessed differed, ranging
all the way from five years to life, in the penitentiary. That they discussed this question for some time, and finally all of them agreed to five years, which was the verdict. That after they all agreed upon his guilt and while they were discussing the punishment to be assessed, in going into another room for a drink of water he passed two or three or four of the jurors, who were standing together, and he heard them, or some of them, discussing or talking about appellant's reputation about raping other girls and in regard to Rosa Duffey. That he at once stated to them that they were not trying him for any of that, and they must not discuss it. That he did not know whether or not they further discussed it at all, nor does he state what, if anything, was the discussion of these two or three or four jurors. That, when he told them that they were not trying him for any of that and must not discuss it, there was nothing more said about it; that it was just spoken of one time only. That he did not know how long they had talked about it, nor could he tell what any of them said about it. He said: "I just happened to walk up, and they said that, and I told them we were not trying him for that," and that he afterwards heard nothing more on the subject. In another place he testified that they said nothing about any other girl except the Duffey girl. He said: "They just spoke of it that time, and there was no more said about it." When asked about the jury discussing what Mr. Hamilton, the district attorney, said in argument about a juror on the jury, as shown by his bill No. 22, he testified in substance that he thought there was probably a remark made about what Captain Hamilton said — that if it was so, he hit somebody mighty hard. He thinks even he himself made such remark. In one place he testified that that was not discussed at all by the jury, and was asked: "Was there anybody else that said it?" He answered: "No, sir; I don't remember." The bill and his testimony disclose that the appellant claims that the juror Harvill was the one who was discussing these various matters, and in his examination of the jurors he attempted to fix it on Harvill, but the juror Nutt could not, and did not, fix any of this on Harvill, or any other individual juror, or jurors. Later, on being questioned on this point, he said: "Well, two or three men said the same thing — that Captain Hamilton hit the man pretty hard if it was facts." In his cross-examination, he said in substance that in considering and finding the verdict, that he considered nothing else whatever except the law and the evidence that was before them, and that nothing else had any influence except the law from the court and the evidence from the witnesses and that they discussed nothing else except the law as given and charged by the court and the evidence that was before them, and that they all agreed on the guilt of appellant before anything was said or any discussion of any of these outside matters.
Appellant then introduced the juror L.W. Harvill, who swore that he thought not anything was mentioned in the jury room about Rosa Duffey. The effect of his testimony tended to show that nothing of these outside matters was mentioned or discussed by him or any other
of the jurors. And on cross-examination, that he decided the case on the law and the evidence, and allowed nothing else in the world to influence him.
Then appellant introduced Henry C. Miller, another juror, who testified in substance that he never heard in the jury room any discussion about the appellant raping any girl other than Zollie Jones, and that he heard no one discussing about any other girl.
The other eight jurors present were then tendered appellant for introduction and examination on the hearing of his motion for new trial. He affirmatively declined to introduce any of them. On his bill to the court's action in overruling his motion for a new trial, after hearing this testimony, the court qualified it by stating: "The court had subpoenas issued for the whole jury and told the defendant that he could examine the whole panel. Eleven of the jury appeared. The defendant only examined them."
Appellant's nineteenth bill of exception shows that the appellant testified, and when the State took him on cross-examination, over his objection, he was required to answer among other things that he knew Rosa Duffey; that, after identifying who she was, and in substance a young girl; and if he did not seduce her, and if he was not charged therewith and arrested therefor. The appellant's attorneys objected to going into this matter at all and proving orally by him the fact that he had been charged with the seduction of this girl, claiming that the records themselves would be the best evidence. One of the attorneys, at the time when this matter was up, expressly stated in substance that appellant had been charged with the offense of the seduction of Rosa Duffey. Upon inquiry by the court, he was assured at the time by the district attorney that he would produce the indictment or papers showing that he had been so indicted. Thereupon, the court permitted the cross-examination of appellant and permitted the State to go into the details of his alleged relations with the Duffey girl to the effect that, when he was charged and arrested for seducing her, he immediately married her, thereby making her his wife so as to prevent her testimony against him to convict him for that offense. That, at the time, she was pregnant by him, and later had a baby by him. That he abandoned her immediately after he married her and never lived with her at all as his wife. The court even permitted him to go into details about his baby, its sex, his perfect indifference to the baby, his having nothing to do with it; that he did not even know its name and cared nothing about it at all; in fact, to go into details that were not admissible in this case under any circumstances; and all this over appellant's persistent and repeated exceptions. When the cross-examination of the appellant was concluded, his attorneys called upon the district attorney to produce the indictment, which he had assured the court he would do. It then developed that no indictment was actually found, because of the fact, as stated, that, when he was arrested under the complaint charging him with the seduction of Rosa Duffey, he married her so as to destroy her testimony and prevent any indictment or conviction
of him for that offense. The district attorney then stated to the court that he had assured the court about the papers and his later production of them on what appellant's attorney, Mr. Moore, said on the question of the charge of seduction against him. The court being of the opinion, it seems, that the indictment was the best evidence, and it being shown that there was none, he thereupon immediately withdrew all of said testimony from the jury and at once instructed them orally, is will hereinafter be quoted, and in addition in his written charge also that it was all withdrawn and not to consider it, as will hereinafter be quoted. In approving appellant's bill of exception No. 19 on this subject, the court qualified it as follows: "The matter inquired about was upon cross-examination of the defendant. It was claimed by the State that the defendant after he had intercourse with Zollie Jones and after prosecution began he sought to marry her, not in good faith, but for the purpose of suppressing her testimony against him; and that Zollie's mother and father were aiding him in this matter. The State offered to prove that he had had intercourse with other girls under fifteen years of age and that when it was discovered, he married them to suppress their testimony. That he had a regular system for raping young girls and then married them so as to suppress their testimony. He also stated that he expected (to) show that the defendant had been indicted for this offense. The court admitted this testimony upon this statement. The State, however, could only show one other act of rape with another girl and failed to show indictments. The court excluded from the consideration of the jury all of such testimony and instructed the jury not to consider such testimony for any purpose."
By appellant's bill No. 24, he complains of this language of the district attorney in argument to the jury: "Little Zollie Jones has told you that the defendant did have intercourse with her and no witness has denied it but the defendant himself; how much attention are you going to pay to the defendant's testimony on this point when you know he is swearing to save himself from the penitentiary and possibly his life and when you consider that when he was on the stand he admitted that he married poor little Rosa Duffey and abandoned her immediately, although he had got her pregnant and that he did not know his baby's age and had forgotten its name; that he did not know where poor little Rosa Duffey was and didn't care." This was promptly objected to as soon as uttered by the district attorney, on the ground that he was out of the record and only seeking to prejudice the defendant before the jury. It seems the court immediately sustained appellant's objection, and in qualifying his bill on the subject did so as follows: "Upon cross-examination of the defendant he testified that he had been arrested for `having intercourse with the Duffey girl and got a child by her and afterward married her and then abandoned her and did not know where she or the child was and did not know the name of the child.' This testimony was excluded by the court and in the court's written instruction the jury was instructed not to consider any testimony there excluded for any purpose. The defendant in his motion
for new trial set these remarks up as one ground for new trial claiming that these remarks wrongfully influenced the jury in finding a verdict and that this excluded testimony and the district attorney's argument then was discussed in the jury room and tending to cause the verdict of guilty. The court had subpoenas issued for all of the jury and eleven of them upon the hearing of the motion for new trial were brought into court and sworn as witnesses and tended (tendered) to the defendant. The defendant only examined three of them, and only one, the foreman of the jury, said that this subject was mentioned in the jury room and then only after the verdict of guilty had been agreed upon and that he immediately forbade a consideration of the matter and a discussion thereof and that there was no discussion. The other two jurors said it was not discussed or considered at all, and all three of the jurors said that it was not considered by any of the jury. The defendant declined to examine the other jurors. The court in considering the motion for new trial under the testimony as given, concluded that while the language of the district attorney was improper and as the defendant received the lowest penalty and as the facts fully sustained the verdict of the jury (they) were not improperly influenced by either the argument of the district (attorney) or the excluded testimony. The statement of facts taken on motion for new trial will show the testimony of these jurors."
In his bill No. 22, appellant complains of this language of this district attorney in argument before the jury: "I have been informed that there is a man on this jury who took the oath of office and stated that he did not know Kinney Miller and was not acquainted with Kinney Miller, that he knew nothing about this case, had never discussed this case . . . that that man, gentlemen, is on this jury, whom I have the honor to address, is a neighbor of Kinney Miller's, that he has discussed this case with him and that he has been in Kinney Miller's saloon. Now if he is on this jury for the purpose or with the object or hope that there will be a miscarriage of justice in this case, I want to inform you that so long as I am district attorney of this district and have charge of the prosecution of these cases" — Appellant, at the time, as soon as these words were uttered by the district attorney and before he concluded objected to any remarks on the subject, because none of it was within appellant's knowledge or that of his attorneys, and there was nothing in the record about the matter to show that such was true, and that the remarks could have been made by him but for one purpose, to terrify and intimidate the jury and prevent a full and fair discussion by them in the jury room, etc. The court, in approving appellant's bill on this subject, did so with the same qualification and statement as to exception 24, just above quoted.
The testimony of the three jurors, as a whole, was amply sufficient to justify the trial judge to believe and find, as he, in substance, shows he did, if it did not affirmatively establish: (1) That the jury did not go "out of the record and discuss facts and matters not in the
record," but, on the contrary, that they did not discuss nor consider anything except the law and the evidence before them. That they excluded everything else from their consideration. (2) That they did not consider nor discuss any of the excluded evidence "about this defendant raping other girls," nor "in regard to said Rosa Duffey." (3) That they did not consider nor discuss what the district attorney, Judge Hamilton, said in argument as alleged in appellant's bill No. 22. (4) That they did not consider nor discuss what Judge Hamilton said in argument about Rosa Duffey as alleged in his bill No. 24; and (5) if the jury mentioned, discussed or considered any of these outside matters, it was after, and not before, they had all agreed on his guilt.
It is true some of the testimony of juror Nutt, especially on direct examination, if considered alone, would tend to show that some of the jurors did mention, and he might have thought, possibly briefly discussed, some of said matters, but taking his testimony on cross-examination, and as a whole, we think it clearly authorized the trial judge to find and conclude, as he did, against all of appellant's contentions. But especially when he heard the testimony of the other two jurors, who positively and flatly swore, in substance, on this point the reverse of what Mr. Nutt did in his direct examination. In the recent case of Lamb v. State, 75 Tex.Crim. Rep., 169 S.W. Rep., 1158, we had occasion to discuss this question fully. We there held: "The trial judge heard all this and the testimony of each of the seven jurors, saw their manner of testifying, the questions that were put to them on direct and cross-examination, and the whole thing, and he was much more competent to arrive at the truth of the matter than this court can be from the statement of facts. He also doubtless knew each of these jurors personally and could determine the weight to be given to his testimony and his credibility. This court can not do that. There could be culled perhaps enough of the testimony of these jurors, if taken alone and believed by the judge, in favor of appellant, to have justified him in holding that the verdict was reached by lot. On the contrary, there is ample evidence and a preponderance of it, which clearly justified him to hold, as he did, that the verdict was not reached by lot. Upon the whole, it was a question of fact to be decided by the trial judge from all the testimony — not two or three of the jurors, but all seven of them."
Again, on all these questions we think what this court said in the recent case of Martin v. State, 73 Tex.Crim. Rep., is peculiarly applicable herein. In that case Martin, an old man, was convicted of raping, by her consent, a girl under fifteen years of age, she alone testifying to the act of intercourse, and several others, by him with her. He proved his good reputation as a peaceable, law-abiding citizen, and introduced testimony strongly tending to show he was impotent and it was impossible for him to have had sexual intercourse with her. He also proved many circumstances tending to show her testimony incredible. In the trial court, and this, he strenuously contended the evidence was not sufficient to sustain the verdict. But we correctly held that, as the trial judge heard the testimony, saw the witnesses,
and their manner of testifying, etc., and had refused to disturb the verdict, we could not, saying: "While quite a severe arraignment of district judges in general was made in the argument, yet they, like ourselves, are sworn officers of the law, and it is their, as well as our, duty to see that no unjust judgment is permitted against any citizen of this State. We have implicit faith and confidence in the trial judges, and that they will do their duty, and we always give great weight to their action in a matter of this kind, and feel that in doing so we are but following the plain intent of the law. They feel their responsibilities, as we do ours, and will protect the innocent as well as punish the guilty."
So, in this case, the trial judge heard all the witnesses, saw their manner of testifying, and the conduct of direct and cross-examination of them by their respective attorneys, and the manipulation, and attempted manipulation, of some of them by appellant, and the whole conduct of the trial from start to finish, and also saw and heard the jurors testify on the motion for new trial, and we have "faith and condence in the trial judge, that he did his duty, and we give great weight to his action, and feel in doing so, we are but following the plain intent of the law, and that he will protect the innocent as well as punish the guilty," and has done so in this instance. We do not mean to say that trial judges do not sometimes commit errors, for they all occasionally do so. We all do so. No judge of any court is infallible. This trial judge did commit some errors in this trial, but in time he duly corrected them in such a way as to render them harmless to appellant, as the evidence and record abundantly shows.
Further, appellant had eight other jurors present to testify. They were each bound to have also known the facts under investigation. They were at the time actually tendered to appellant for him to have them testify. He affirmatively declined to introduce any of them. Doubtless he had already experienced not only his utter failure to prove any of his contentions, but the testimony of the three whom he did have to testify established the reverse of his contentions so clearly he was satisfied the testimony of all the others would be to the same effect. At any rate, the trial judge could, and did, so conclude. The law on this point is well settled, as laid down in Graves v. U.S., 150 U.S. 118, 14 Sup. Ct., 40, 37 Law. Ed., 1021, as follows: "The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." All the authorities are to the same effect, and this court has many times so held. See Sweeney v. State, 65 Tex.Crim. Rep., 146 S.W. Rep., 883, where many of the authorities are cited. Also sec. 1052, subdiv. 8, White's Ann. C.C.P., p. 659.
Again, under all the authorities, there can be no doubt but that the State had the right to prove, as it did by appellant himself on cross-examination to impeach him, that he had been arrested under a complaint
charging him with the seduction of Rosa Duffey, a felony, and that in order to prevent conviction therefor, he had married the seduced girl so as to make her his wife and thereby prevented her testifying against him. Branch's Crim. Law, sec. 868. And it is our opinion also, that said testimony was admissible, under the facts and circumstances of this case, to show appellant's system of crime in these sexual offenses with young girls. Chance v. State, 63 Tex.Crim. Rep.; Melton v. State, 63 Tex. Crim. 362, and cases therein cited; Kaufman v. State,70 Tex. Crim. 441, and authorities therein cited.
There can be no question but that all the details of appellant's connection with Rosa Duffey (or any other woman, other than Zollie), and that she had a baby by him, and his desertion and neglect of her, and his neglect of his baby and not knowing its name, and caring nothing about it, etc. — in fact, all the evidence to which appellant objected, shown by his bill No. 19, except what we have stated in the last paragraph above was clearly inadmissible. All authorities so hold. There are a great number of them. It is unnecessary to cite them. The admission of such testimony can not be too strongly and severely condemned. It is difficult to understand how the experienced and able district attorney could make such a mistake as to elicit such erroneous evidence, and the learned district judge could, even for a time, so forget the law as to permit its introduction. But this palpable error was committed by them. What was done to correct it? What injury, if any, was caused to appellant thereby so as to show he did not get a fair and impartial trial? If not corrected in time so as to prevent injury to him and because thereof he did not get a fair and impartial trial, unquestionably his case should be reversed. But, if corrected at once and no injury occurred to him, and he did get a fair and impartial trial, then why should the case be reversed? It should not be.
As soon as the judge came to himself and saw he had erroneously admitted said evidence, he immediately withdrew it all and at the time charged the jury: "Gentlemen, you will disregard and not consider for any purpose whatever any testimony in this case as to any other girl than the one about which the defendant is on trial. Don't consider for any purpose the testimony in regard to Rosa Duffey, or whatever her name is — you will not consider that for anything, or testimony as to any other girl in this case. That is excluded." And in addition, again, in his main charge told the jury: "You are further instructed that if any member or members of the jury have read any newspaper report of the matters under investigation in this case, or have learned any fact with reference thereto from any source other than from the evidence introduced in this case, then you are instructed that you must not mention, consider or discuss such newspaper or other reports, if any, for any purpose whatever, but you must confine your deliberations to the evidence introduced in the trial of this case and by the law as given you in the charge of the court;and you must disregard and not consider in any manner anytestimony which has been excluded from your consideration by the court." The trial judge not only withdrew the evidence, but twice specifically told the jury not to consider it for any purpose. When that was done, what is the law applicable to the question? It is, as clearly laid down in Miller v. State, 31 Tex.Crim. Rep., and many other cases as follows: "The effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, has been the subject of much discussion in the courts, and the decisions are not harmonious upon the question. The weight of authority, however, seems to be that such withdrawal cures the error, and such has been the opinion entertained by this court. Sutton v. State, 2 Texas Crim. App., 342; Marshall v. State, 5 Texas Crim. App., 273; Phillips v. State, 22 Texas Crim. App., 139; Nalley v. State, 28 Texas Crim. App., 387. See also State v. Towler,13 R.I. 661; Thomp., Trials, secs. 715, 722, 723, and notes. In Sutton's case, supra, it was said: `But conceding the court erred in admitting this testimony, the error, if in fact any was committed, was corrected by the court afterwards withdrawing it from the consideration of the jury.' This ruling has been approved in subsequent cases, and the doctrine uniformly upheld, that when improper evidence has been admitted over objection, it is the proper practice, and may become the duty of the court, to exclude or withdraw it from the jury, and instruct them to disregard it in finding their verdict. Authorities above cited; Willson's Crim. Stats., sec. 2514. To hold otherwise would be tosanction the doctrine that the court could not cure any errorinto which it may have fallen by mistake or inadvertence, andthus render it helpless to rectify errors committed, and thetrial a mockery and a farce. We can not sanction such adoctrine." This Miller case (31 Tex.Crim. Rep.) has never been criticised, modified or overruled, but many times cited and approved even down to a very late date. See Martoni v. State,74 Tex. Crim. 90, 167 S.W. Rep., 349; McDonald v. State,77 Tex. Crim. 612, 179 S.W. Rep., 881, and several cases there cited approving it. Vick v. State, 71 Tex.Crim. Rep.; Love v. State, 68 Tex.Crim. Rep.-234; Sweeney v. State,65 Tex. Crim. 593. It is useless to cite others. In Hatcher v. State, 43 Tex.Crim. Rep., this court again expressly held: "There is a contrariety of decisions of this court on the subject of the exclusion of testimony after it has once been improperly admitted. Some of the cases hold that the exclusion of such testimony will not cure the error, while others hold the contrary. In such a conflict the true rule would seem to be that if the admitted testimony is of such a damaging character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damaging character, and not likely to influence the jury, it can be withdrawn, and the error of its admission thereby cured." That case, too, has never been questioned, modified or overruled, but many times cited and approved. We regard this question as definitely settled in this
court. It is true that in said Miller and Hatcher cases this court recognized another well established rule, pointedly stated in the Hatcher case, just quoted, where "the true rule" is stated. This was also recognized in said Miller case, wherein it was even expressly stated, "we are not prepared to say that it (withdrawn inadmissible evidence) may not have prejudiced defendant in the minds of the jury." In that case, the death penalty was inflicted, but the case was affirmed. Now, was the admission of said illegal evidence cured by its withdrawal by the judge and his specifically charging them twice, as stated, that they "must not consider it for any purpose"? It could not have affected his credibility, because it was not on that subject. It might have been contended that it inflamed the minds of the jury and was calculated to cause them to inflict a severe penalty — and that is appellant's contention herein in connection with the reference to the matter in the district attorney's argument shown by bill No. 24, as we understand. But the very reverse of this is shown. On the hearing of the motion for new trial the jurors swore positively they did not consider nor discuss said excluded evidence, nor said statement about it by the district attorney. The trial judge so found and held. The jury assessed the lowest punishment. The preponderance of the evidence, without doubt, clearly established appellant's guilt. So that it is conclusively shown no injury whatever occurred to appellant in all this matter. It has uniformly been held, in accordance with the effect of our statute, since Judge Hurt in Davis v. State, 28 Texas Crim. App., 542, said, "to reverse in the absence of probable injury would be contrary to principle."
In principle, what is held by this court when the jury merely alludes to a former conviction of an appellant, and the punishment then inflicted upon him is applicable here. The statute forbids an allusion to such conviction, but this court has held repeatedly, as in Morrison v. State, 39 Tex. Crim. 519
: "The mere statement of that fact (a previous conviction and twenty-five years punishment) in the jury room may not have operated to the prejudice of appellant. Before a case would be reversed on this ground, some prejudice must be shown." We had occasion to review this question and the authorities at length in Coffman v. State, 73 Tex.Crim. Rep., where a great many of the cases are cited.
The like principle is also established where a mere allusion in the jury room to an appellant's failure to testify is made. Our statute expressly prohibits this, but our decisions establish that a mere allusion to appellant's failure to testify, unless injury is shown, is no ground for reversal. We also cited the cases on this point in the Coffman case, supra, p. 311.
Again, it is well established that, when the verdict is attacked for misconduct of the jury on any of these points; that, where the evidence heard on motion for new trial established the fact, as in this case, that the discussion of any of these outside matters occurred after the jury had agreed upon a verdict of guilty, but before they assessed the punishment, and when they did assess the punishment they fixed it at the
minimum authorized by law, no ground for reversal is presented. Parker v. State, 30 S.W. Rep., 553; Williams v. State,33 Tex. Crim. 128; Ray v. State, 35 Tex.Crim. Rep.; Angley v. State, id., 435.
The only other question is whether what the district attorney said in argument about a juror, as shown by bill No. 22, presents reversible error. The testimony of the jurors shows they did not discuss nor consider what the district attorney said, and that it had no effect whatever on them. This of itself shows no injury occurred to appellant by reason thereof. The law on this point is likewise well established by the decisions of this court. We had occasion in the recent case of Mooney v. State, 76 Tex. Crim. 539, 176 S.W. Rep., 52, to review this question, cite and quote from the cases and again call attention to the rules in such case. We think it unnecessary to do further here than to cite the Mooney case and each of the authorities cited and reviewed announcing the rules. Further, in that case, we held that this rule was also well established: "When an objectionable statement is made in argument not authorized by the evidence or a deduction therefrom, mere objecting thereto will not present error. In order to do so, the party must also request a charge requiring the jury to disregard it." See the authorities there cited on page 58. It seems the court sustained appellant's objection to this argument of the district attorney. The appellant at the time, nor at any time during the trial, requested any written charge of the court directing the jury not to consider this argument. The testimony of the jurors shows, as stated, that they did not consider it. Hence, under the authorities and the facts of this case, no reversible error is shown on this ground.
This court has all the time condemned improper argument of prosecuting attorneys, and we emphatically condemn this argument of the district attorney. It should not have been indulged; but, as the record demonstrates that the jury did not consider it and it resulted in no injury to appellant, it should not, and does not, show any such material error as would require or authorize this court to reverse this case on that account.
We have given this case and the record unusual, careful and thoughtful consideration and reached the conclusion that no reversible error is shown, and, therefore, the judgment will be affirmed.
Affirmed.