BEAUCHAMP, Judge.
The appeal is from a conviction for rape with a sentence of death.
Appellant was a soldier in the U. S. Air Force, stationed at Fort Worth. He was born and reared in Vernon, Texas. He was indicted for the offense of rape upon Linda King, who was alleged to be under the age of fifteen years. The case was transferred from the criminal district court of Tarrant County to the district court of Navarro County, presided over by the Honorable A. P. Mays as judge.
It appears from the record that much publicity was given to the crime and to the trial of the case. Under the circumstances this was inevitable. The courtroom was filled with spectators. There were news reporters with flashlight cameras, seeking every opportunity to catch something that would be accepted by their papers. It created a problem for the trial court which is seldom equaled this day and time. The fairness and ability of the judge who presided under such circumstances deserve more than passing notice. It demonstrates that the sometimes labeled “intricacies of criminal procedure” hold no terror for the judge who is properly prepared and who has a heart dedicated to the trial of his cases according to law. It is more remarkable in the instant case because of the carelessness in preparing the indictment and the reckless arguments of the prosecution which we are compelled to discuss herein at length.
It will not be necessary to discuss the evidence. The appellant’s counsel in presenting the case, with sincere emotion and a proper conception of his duty and that of the courts, began by saying that his client was guilty, that the horribleness of the crime cannot be overdrawn, but that the guilty should be tried according to law the same as the innocent. This attitude is as commendable on the part of defense counsel as is that of the trial judge.
We will discuss the fourteen bills of exception which embrace and bring to this court the principal questions for our consideration. Bill of Exceptions No. 1 complains that during the session of the court at one time the trial judge stepped out of the courtroom momentarily, leaving the jury in the box. Immediately thereafter it is claimed that photographers approached within a few feet of the jurors with flashlight cameras, and ran from one portion of the courtroom to another, some of whom mounted the platform on which the court’s bench was located and snapped flashlight pictures, taking a large number of the defendant and of the jury. When the judge returned objection was made to the things that occurred and the court was asked to declare a mistrial. Qualifying this bill the court
declined to certify what took place except that no communication of any kind was had by anyone with the jury, that it was at all times under the supervision of the sheriff’s department. The bill as qualified and the facts before us do not give any information as to the purpose nor the results from the conduct complained of. We are left to speculate that it had some injurious effect on appellant’s case. This we cannot do. There was no misconduct on the part of the prosecution, the jury, or the court. Any appropriate action which might have been taken, so far as this record discloses, would have been against those who intruded upon the sanctity of the court. We see nothing in the procedure which we can reach to give relief to appellant.
Bill of Exceptions No. 2 complains of the action of a photographer who sat near the jury box and approached within a few feet of the witness chair to take the pictures of witnesses. In the court’s qualification he said that flashlight bulbs were not used in taking pictures at any time during the trial. One photographer made himself too conspicous before the jury, in the opinion of the trial court, and by his order was removed.
Bill of Exceptions No. 3 complains of the testimony of the witness Farnsworth as to a brief and minor argument between appellant and his wife, on one occasion, over a few dollars. The court sustained the objection to this and did everything he was asked to do by the defendant. We find nothing inflammatory about the evidence.
Bill of Exceptions No. 4 complains of a statement elicited from appellant’s wife, while on the stand. In the first place, the matter seems trivial. By the court’s explanation it is justified because of her testimony as to the drunkenness and mental condition of her husband.
Bill of Exceptions No. 5 complains of a question asked by the prosecution of appellant’s wife. The court sustained the objection to this question and so qualifies the bill as to show that no error was committed even if the question had been answered.
Bill of Exceptions No. 6 complains of the effort of prosecution to bring into the case some extraneous matters, the nature of which is not revealed by the record. These matters had been presented to the court in the absence of the jury. They were understood by the court and his qualification removes any doubt of the correctness of the ruling.
Bill of Exceptions No. 7 complains of a question asked appellant while testifying in his own behalf, in which the prosecution referred to him as “William Ruthless Ray.” His name is William Ruth (or Ruthes) Ray. The appellant himself took exception to the use of the name “Ruthless.” In his qualification the court adopted that applied to Bill No. 6, reference to which will be hereinafter made.
Bill of Exceptions No. 8 contains objection to some theorectical discussion of a phychiatrist. The objection was sustained, “* * * to the latter part of the doctor’s statement.” This seems to have been satisfactory to appellant.
Bill of Exceptions No. 9 complains of the argument of Mr. Winters, in behalf of the state, referring to part of the doctor’s testimony. The trial court, having in mind how much of the evidence he had excluded, qualified the bill by saying that the argument was justified. The statement of facts sustains his action. It is our conclusion that the entire matter was trivial. It had no probative force and received no consideration from a reasonably qualified and dispassionate jury.
Bill of Exceptions No. 10 complains of argument made by the district attorney of Tarrant County, in the closing argument of the case. The objection to this argument, as in many of the others, fails to negative the fact that it was made in reply to argument of the defense, or invited by it. In this respect the Bill of Exceptions No. 10 is defective, as are other bills hereinafter to be considered. It is noted, too, that the court in his qualification states that the argument was in direct reply to defendant’s counsel.
Bill of Exceptions No. 11 complains of the argument of the same attorney. The bill is defective in the same manner as Bill No.. 10 and has the same qualification.
Bill of Exceptions No. 12 complains of the reference made by the district attorney to the appellant as “Ruthless Ray.” The careful trial judge sustained objection to the argument at the time it was made and gave the district attorney very positive instructions in the matter. We see no error shown by the bill. Certainly the reference is not inflammatory under the circumstances of this case.
Bill No.
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BEAUCHAMP, Judge.
The appeal is from a conviction for rape with a sentence of death.
Appellant was a soldier in the U. S. Air Force, stationed at Fort Worth. He was born and reared in Vernon, Texas. He was indicted for the offense of rape upon Linda King, who was alleged to be under the age of fifteen years. The case was transferred from the criminal district court of Tarrant County to the district court of Navarro County, presided over by the Honorable A. P. Mays as judge.
It appears from the record that much publicity was given to the crime and to the trial of the case. Under the circumstances this was inevitable. The courtroom was filled with spectators. There were news reporters with flashlight cameras, seeking every opportunity to catch something that would be accepted by their papers. It created a problem for the trial court which is seldom equaled this day and time. The fairness and ability of the judge who presided under such circumstances deserve more than passing notice. It demonstrates that the sometimes labeled “intricacies of criminal procedure” hold no terror for the judge who is properly prepared and who has a heart dedicated to the trial of his cases according to law. It is more remarkable in the instant case because of the carelessness in preparing the indictment and the reckless arguments of the prosecution which we are compelled to discuss herein at length.
It will not be necessary to discuss the evidence. The appellant’s counsel in presenting the case, with sincere emotion and a proper conception of his duty and that of the courts, began by saying that his client was guilty, that the horribleness of the crime cannot be overdrawn, but that the guilty should be tried according to law the same as the innocent. This attitude is as commendable on the part of defense counsel as is that of the trial judge.
We will discuss the fourteen bills of exception which embrace and bring to this court the principal questions for our consideration. Bill of Exceptions No. 1 complains that during the session of the court at one time the trial judge stepped out of the courtroom momentarily, leaving the jury in the box. Immediately thereafter it is claimed that photographers approached within a few feet of the jurors with flashlight cameras, and ran from one portion of the courtroom to another, some of whom mounted the platform on which the court’s bench was located and snapped flashlight pictures, taking a large number of the defendant and of the jury. When the judge returned objection was made to the things that occurred and the court was asked to declare a mistrial. Qualifying this bill the court
declined to certify what took place except that no communication of any kind was had by anyone with the jury, that it was at all times under the supervision of the sheriff’s department. The bill as qualified and the facts before us do not give any information as to the purpose nor the results from the conduct complained of. We are left to speculate that it had some injurious effect on appellant’s case. This we cannot do. There was no misconduct on the part of the prosecution, the jury, or the court. Any appropriate action which might have been taken, so far as this record discloses, would have been against those who intruded upon the sanctity of the court. We see nothing in the procedure which we can reach to give relief to appellant.
Bill of Exceptions No. 2 complains of the action of a photographer who sat near the jury box and approached within a few feet of the witness chair to take the pictures of witnesses. In the court’s qualification he said that flashlight bulbs were not used in taking pictures at any time during the trial. One photographer made himself too conspicous before the jury, in the opinion of the trial court, and by his order was removed.
Bill of Exceptions No. 3 complains of the testimony of the witness Farnsworth as to a brief and minor argument between appellant and his wife, on one occasion, over a few dollars. The court sustained the objection to this and did everything he was asked to do by the defendant. We find nothing inflammatory about the evidence.
Bill of Exceptions No. 4 complains of a statement elicited from appellant’s wife, while on the stand. In the first place, the matter seems trivial. By the court’s explanation it is justified because of her testimony as to the drunkenness and mental condition of her husband.
Bill of Exceptions No. 5 complains of a question asked by the prosecution of appellant’s wife. The court sustained the objection to this question and so qualifies the bill as to show that no error was committed even if the question had been answered.
Bill of Exceptions No. 6 complains of the effort of prosecution to bring into the case some extraneous matters, the nature of which is not revealed by the record. These matters had been presented to the court in the absence of the jury. They were understood by the court and his qualification removes any doubt of the correctness of the ruling.
Bill of Exceptions No. 7 complains of a question asked appellant while testifying in his own behalf, in which the prosecution referred to him as “William Ruthless Ray.” His name is William Ruth (or Ruthes) Ray. The appellant himself took exception to the use of the name “Ruthless.” In his qualification the court adopted that applied to Bill No. 6, reference to which will be hereinafter made.
Bill of Exceptions No. 8 contains objection to some theorectical discussion of a phychiatrist. The objection was sustained, “* * * to the latter part of the doctor’s statement.” This seems to have been satisfactory to appellant.
Bill of Exceptions No. 9 complains of the argument of Mr. Winters, in behalf of the state, referring to part of the doctor’s testimony. The trial court, having in mind how much of the evidence he had excluded, qualified the bill by saying that the argument was justified. The statement of facts sustains his action. It is our conclusion that the entire matter was trivial. It had no probative force and received no consideration from a reasonably qualified and dispassionate jury.
Bill of Exceptions No. 10 complains of argument made by the district attorney of Tarrant County, in the closing argument of the case. The objection to this argument, as in many of the others, fails to negative the fact that it was made in reply to argument of the defense, or invited by it. In this respect the Bill of Exceptions No. 10 is defective, as are other bills hereinafter to be considered. It is noted, too, that the court in his qualification states that the argument was in direct reply to defendant’s counsel.
Bill of Exceptions No. 11 complains of the argument of the same attorney. The bill is defective in the same manner as Bill No.. 10 and has the same qualification.
Bill of Exceptions No. 12 complains of the reference made by the district attorney to the appellant as “Ruthless Ray.” The careful trial judge sustained objection to the argument at the time it was made and gave the district attorney very positive instructions in the matter. We see no error shown by the bill. Certainly the reference is not inflammatory under the circumstances of this case.
Bill No. 13 complains of an argument by the district attorney in making reference to the service of the county attorney
and assistant county attorney of Navarro County, and his own service, in which he displayed to the jury by his gestures the fact that his right hand was missing. No objection was taken to this argument at the time and it cannot, therefore, be considered. The bill does not negative the fact that such argument, if harmful, was made in reply to or invited by argument of appellant’s counsel and, furthermore, it is qualified by the court who said that he did not make any more display of his arm and missing hand than was usual and customary in a normal delivery of an argument, and that his statement was in direct reply to the argument of counsel for the defendant.
Bill of Exceptions No. 14 complains of further argument of the district attorney. The bill is defective and similarly qualified by the court as above discussed and need have no further consideration.
In argument before this court appellant’s attorneys seek to raise a question about the testimony of the prosecutrix, Linda King, who was only nine years old. It involves the right of one to testify who is not amenable to the same punishment for perjury as the accused is for the crime with which he is charged. No objection was taken to her testimony at the time and no bill of exception is found in the record complaining of its introduction. The state relies on Santillian v. State, 147 Tex. Crim. Rep. 554, 182 S. W. 2d 812. In the state of the record we do not consider it before us for a decision.
In presenting the case to this court, appellant’s brief treats of the complaint, made for the first time in this court, that the indictment in the case is defective. Admittedly it is carelessly' drawn. It fails to embrace all of the statutory language in that it does not allege that the victim was a female person. Under the many authorities of the state, some of which will be referred to, the indictment must be held defective unless there is language in it to indicate the fact that the victim is a female person. No language can be added by implication or interpolation for this purpose and we must rely upon that which is found in the bill of indictment itself. No pronoun is used to indicate the sex, but it has the allegation that Linda King was under fifteen years of age and not the wife of the defendant. It is our conclusion that the name of the victim, “Linda,” is the name of a female and not a male person. The authorities seem to hold that this allegation will make sufficient reference to the sex to comply with the statutory requirement. We quote from Texas Jur. Vol. 35, p. 809, as follows: “An indictment for rape need not
allege the sex of the victim, and the same is true of an indictment for an assault with intent to rape. While it would be better pleading to charge expressly the sex of the prosecutrix, yet the omission of such averment will not vitiate the indictment if the fact appears from all that is stated by the pleader. Sex may adequately appear by the use of the given name of the victim and the use of the feminine pronoun.”
Quite a complete discussion of the subject is found in the opinion by Justice White in Battle v. State, Vol 4 Tex. App. 595. We find no modification nor criticism of this opinion in subsequent opinions of this court, nor of the courts of other jurisdictions. The decisions of several states are discussed and we find none which would assist appellant in his contention that the indictment herein considered failed to convey by its terms the allegation that the injured party is a female person. It is quite true that in most of these cases the feminine pronoun “she” or “her” was utilized, but a number of them also discuss the use of a feminine name which appears just as potent in the decisions as the use of a feminine pronoun. We think that the use of the feminine given name of the victim and the allegation that this victim was “not the wife” of the accused sufficiently apprizes him of the charge and will admit evidence of the facts relied upon in this case.
In the early case of Waggoner v. State, 35 Tex. Cr. R. 199, 32 S. W. 896, in am opinion by Judge Davidson, we find the same question raised in exactly the same kind of indictment as is now before us. Waggoner was charged with incest. The victim was not alleged to be a female, or his daughter, but her given name was alleged and it was that of a female person. It was alleged that the accused had carnal knowledge of such person. No pronoun was used indicating the sex. It was held that the indictment was sufficient. The case is authority for our holding that the indictment is sufficient in the case now before us.
In view of the penalty assessed, and the unusual circumstances under which the case was tried, we have considered every question in this appeal with great care and caution. We find nothing which might have in the least prejudiced appellant’s case and are of the opinion that no error is reflected by the record.
The judgment of the trial court is affirmed.