HENDERSON, Judge.
The appellant in this case was tried under an indictment in four counts, two of which charged him with rape, and the other two with incest. He was convicted under the count charging him with rape, and his punishment assessed at death. From the judgment of the lower court he prosecutes this appeal. Appellant filed a motion to quash the indictment on the ground that it charged separate and distinct felonies, and was duplicitous, because the counts in the indictment alleged the offenses to have been committed at different and distinct times. There are four counts in the indictment, the first two of which charged incest, and the third and fourth charged rape. At the
trial the State dismissed the second and third counts, and prosecuted the defendant on the first and fourth counts. The first count charged, “That on the 30th day of June, 1895, the defendant did unlawfully and carnally know Pearl Owens, the said Pearl Owens being then and there the daughter of him, the said Jay Owens.” The fourth count charged, “That the defendant on said 30th day of June, 1895, did then and there, unlawfully, in and upon Pearl Owens, a female child, make an assault, and did then and there, by threats and force, and without the consent of the said Pearl Owens, ravish and have carnal knowledge of the said Pearl Owens,” etc. The two offenses are charged in distinct counts, and there is no duplicity in the charge. Although the offenses involve different punishments, they are of the same character; and if, in a case of this character, the proof had failed to show force sufficient to constitute the offense of rape, but had shown carnal intercourse between the parties, on proof of relationship, the party could be convicted of incest. Mr. Bishop says (Code Crim. Proc., Vol. 2,
§ 975):
“An indictment in two counts, one for rape, and the other for assault to commit rape, is not objectionable as charging two offenses.” And it occurs to us that the same principle is applicable to the offenses of rape and incest. The same author above quoted says: “If the offenses are repugnant, or the trial or the judgment is incongruous, and calculated to deprive the defendant of his rights, or embarrass the court, the joinder will not be qiermitted. It is allowed where the offenses are in a kindred line, or where several counts are introduced for the purpose of meeting the evidence as it may transpire on the -trial, all of the counts being for the same offense.” Id., ? 446. And in a Massachusetts case it is held, “That the same count can include rape and incest, and the defendant can be convicted for either.” See Com. v. Goodhue, 2 Mete., 193. In our opinion, there is no repugnance between the two counts in this indictment. They are both predicated upon the same transaction, and the court did not err in refusing to quash the indictment. Nor, in this case, can the appellant complain of the mode of trial. He was arraigned as for a capital felony, and tried by a special venire. This mode was applicable to one of the counts in the indictment. It was more liberal, in that it gave him more challenges than is allowed by law under the count for incest; and of this he would have no more right to complain than would a defendant charged with murder, and convicted of manslaughter, be heard to urge that he ought not to have been tried by a special venire.
In this case the appellant assigns as error the action of the court in permitting the State, on cross-examination of the defendant’s witness, Pate Chapman, to ask said witness if he, on a certain occasion, told one Bill Ratliff that the defendant, Owens, was going to pay witness three horses to get him out,” and, on his answering that he did not, then permitting the State to introduce the said Bill Ratliff, and to prove by him that said Chapman did tell him that the defendant had promised him three horses to get him cleared. Appellant saved an exception to this testimony. It will be observed that this testimony was adducted
on cross-examination of the defendant’s witness by the State. If admissible at all, it was only admissible as going to discredit the defendant’s witness, Chapman, and should have been accordingly limited by the court to that purpose alone. We have examined the charge of the court in that connection, and fail to find that it was so limited. If the State could have proven that the defendant had suborned, or attempted to suborn, the witness Chapman to testify on his behalf, it would have been highly criminative evidence against him; but, instead of proving the same by the witness Chapman (who must be regarded as the State’s witness on this point), the State proved the contrary, and, as far as the defendant was concerned, the testimony did not touch him in this regard, but was totally disconnected from him. If it was admissible at all, as stated before, it could have only been used for the purpose of discrediting the witness, Chapman, and it was the duty of the court to carefully guard and limit this testimony to the only purpose for which it could have been introduced. As was said in Thompson v. State, 29 Tex. Crim. App., 208: “The charge failed to instruct the jury that said testimony was admitted for the sole purpose of impeaching, and could be considered for that purpose only. It was not criminative evidence against the defendant, but, in the absence of an express instruction to the jury restricting their consideration of it to the sole purpose for which it was admitted, they may have regarded it as criminative of the defendant.” See Paris v. State, ante p. 82. The appellant in this case filed a supplemental motion for a new trial on the ground of newly discovered evidence. On the trial of the case, Sam Owens, the brother of the prosecutrix, testified that he, on one occasion, saw the defendant, his father, copulating with the prosecutrix, Pearl Owens, and that he called one Dorsey Taylor, and pointed out to him the parties in the act of carnal intercourse. The application shows that this was the first time that appellant had knowledge of this transaction alleged to have been witnessed both by Sam Owens and Dorsey Taylor. Taylor was not present at the trial, though it appears that both the State and defendant had made efforts to procure his attendance prior to the trial, but without success, neither the State nor the defendant having been able to ascertain his whereabouts. The defendant avers that his purpose in desiring the attendance of said Taylor was to prove that during a part of the year 1893 he lived on the place of the defendant, and that defendant was kind to his family, and that it was not for the purpose of disproving the fact that he saw this defendant having intercourse with Pearl Owens. After the trial the appellant renewed his efforts to ascertain the whereabouts of said Dorsey Taylor, and at length succeeded in locating him at Brenham, in Washington County, and procured his affidavit denying in to to the fact, as testified to by Sam Owens, that he was present and a witness to the act of sexual intercourse between defendant and the prosecutrix on the occasion testified to by said Sam Owens. Ordinarily, it would have been the duty of the defendant, as soon as he was apprised of the testimony of Sam Owens, on the trial, to have then craved a post
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HENDERSON, Judge.
The appellant in this case was tried under an indictment in four counts, two of which charged him with rape, and the other two with incest. He was convicted under the count charging him with rape, and his punishment assessed at death. From the judgment of the lower court he prosecutes this appeal. Appellant filed a motion to quash the indictment on the ground that it charged separate and distinct felonies, and was duplicitous, because the counts in the indictment alleged the offenses to have been committed at different and distinct times. There are four counts in the indictment, the first two of which charged incest, and the third and fourth charged rape. At the
trial the State dismissed the second and third counts, and prosecuted the defendant on the first and fourth counts. The first count charged, “That on the 30th day of June, 1895, the defendant did unlawfully and carnally know Pearl Owens, the said Pearl Owens being then and there the daughter of him, the said Jay Owens.” The fourth count charged, “That the defendant on said 30th day of June, 1895, did then and there, unlawfully, in and upon Pearl Owens, a female child, make an assault, and did then and there, by threats and force, and without the consent of the said Pearl Owens, ravish and have carnal knowledge of the said Pearl Owens,” etc. The two offenses are charged in distinct counts, and there is no duplicity in the charge. Although the offenses involve different punishments, they are of the same character; and if, in a case of this character, the proof had failed to show force sufficient to constitute the offense of rape, but had shown carnal intercourse between the parties, on proof of relationship, the party could be convicted of incest. Mr. Bishop says (Code Crim. Proc., Vol. 2,
§ 975):
“An indictment in two counts, one for rape, and the other for assault to commit rape, is not objectionable as charging two offenses.” And it occurs to us that the same principle is applicable to the offenses of rape and incest. The same author above quoted says: “If the offenses are repugnant, or the trial or the judgment is incongruous, and calculated to deprive the defendant of his rights, or embarrass the court, the joinder will not be qiermitted. It is allowed where the offenses are in a kindred line, or where several counts are introduced for the purpose of meeting the evidence as it may transpire on the -trial, all of the counts being for the same offense.” Id., ? 446. And in a Massachusetts case it is held, “That the same count can include rape and incest, and the defendant can be convicted for either.” See Com. v. Goodhue, 2 Mete., 193. In our opinion, there is no repugnance between the two counts in this indictment. They are both predicated upon the same transaction, and the court did not err in refusing to quash the indictment. Nor, in this case, can the appellant complain of the mode of trial. He was arraigned as for a capital felony, and tried by a special venire. This mode was applicable to one of the counts in the indictment. It was more liberal, in that it gave him more challenges than is allowed by law under the count for incest; and of this he would have no more right to complain than would a defendant charged with murder, and convicted of manslaughter, be heard to urge that he ought not to have been tried by a special venire.
In this case the appellant assigns as error the action of the court in permitting the State, on cross-examination of the defendant’s witness, Pate Chapman, to ask said witness if he, on a certain occasion, told one Bill Ratliff that the defendant, Owens, was going to pay witness three horses to get him out,” and, on his answering that he did not, then permitting the State to introduce the said Bill Ratliff, and to prove by him that said Chapman did tell him that the defendant had promised him three horses to get him cleared. Appellant saved an exception to this testimony. It will be observed that this testimony was adducted
on cross-examination of the defendant’s witness by the State. If admissible at all, it was only admissible as going to discredit the defendant’s witness, Chapman, and should have been accordingly limited by the court to that purpose alone. We have examined the charge of the court in that connection, and fail to find that it was so limited. If the State could have proven that the defendant had suborned, or attempted to suborn, the witness Chapman to testify on his behalf, it would have been highly criminative evidence against him; but, instead of proving the same by the witness Chapman (who must be regarded as the State’s witness on this point), the State proved the contrary, and, as far as the defendant was concerned, the testimony did not touch him in this regard, but was totally disconnected from him. If it was admissible at all, as stated before, it could have only been used for the purpose of discrediting the witness, Chapman, and it was the duty of the court to carefully guard and limit this testimony to the only purpose for which it could have been introduced. As was said in Thompson v. State, 29 Tex. Crim. App., 208: “The charge failed to instruct the jury that said testimony was admitted for the sole purpose of impeaching, and could be considered for that purpose only. It was not criminative evidence against the defendant, but, in the absence of an express instruction to the jury restricting their consideration of it to the sole purpose for which it was admitted, they may have regarded it as criminative of the defendant.” See Paris v. State, ante p. 82. The appellant in this case filed a supplemental motion for a new trial on the ground of newly discovered evidence. On the trial of the case, Sam Owens, the brother of the prosecutrix, testified that he, on one occasion, saw the defendant, his father, copulating with the prosecutrix, Pearl Owens, and that he called one Dorsey Taylor, and pointed out to him the parties in the act of carnal intercourse. The application shows that this was the first time that appellant had knowledge of this transaction alleged to have been witnessed both by Sam Owens and Dorsey Taylor. Taylor was not present at the trial, though it appears that both the State and defendant had made efforts to procure his attendance prior to the trial, but without success, neither the State nor the defendant having been able to ascertain his whereabouts. The defendant avers that his purpose in desiring the attendance of said Taylor was to prove that during a part of the year 1893 he lived on the place of the defendant, and that defendant was kind to his family, and that it was not for the purpose of disproving the fact that he saw this defendant having intercourse with Pearl Owens. After the trial the appellant renewed his efforts to ascertain the whereabouts of said Dorsey Taylor, and at length succeeded in locating him at Brenham, in Washington County, and procured his affidavit denying in to to the fact, as testified to by Sam Owens, that he was present and a witness to the act of sexual intercourse between defendant and the prosecutrix on the occasion testified to by said Sam Owens. Ordinarily, it would have been the duty of the defendant, as soon as he was apprised of the testimony of Sam Owens, on the trial, to have then craved a post
ponement of the case until absent witnesses could be brought in, but the record in this case shows that a postponement would have been useless, because the defendant had, previous to the trial, used all proper diligence to discover the witness, Taylor; and the court, under the circumstances, could not have been expected to entertain a motion to postpone the case for the appearance of the said witness. Nor was it in the power of the appellant to know that he could have availed himself of the testimony of the said witness, Taylor, in contradiction of the evidence of Sam Owens, if he were present, because he shows conclusively that he had not previously been apprised of the nature of Sam Owens’ testimony as to said transaction, and consequently he could not know what would be the testimony of the said Taylor, in that regard. The testimony of the said Sam Owens was upon a material issue in the case, and it went to the jury with the supperadded force that not only he saw the transaction, but that another absent witness was also present and saw it. As stated before, the affidavit of the witness, Taylor, expressly and pointedly denies that he saw said act of carnal intercourse. The State’s testimony upon this point was not previously known to appellant, and could not have been known by the use of any amount of diligence, nor 'was it within his power, by the use of any reasonable diligence, to rebut this damaging testimony at the trial. It was shown subsequent to the trial, in the application by appellant for a new trial, that said witness, Taylor, would rebut and contradict the State’s evidence as to said transaction. The court below ought to have allowed the appellant a new trial. For the errors discussed, the judgment is reversed and the cause remanded.
.'Reversed and Demanded.