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las county, and of which W. H. Noble was in his favor by N. A. Dawson, who purportforeman, and that appellant

ed to represent a construction company, "did then and there take his corporeal oath and which check is alleged to have been given in was duly sworn as a witness before said grand June, and he testified that in July he prejury, said oath being then and there duly administered to him by the said foreman, who was sented it to a bank in Stephenville, Erath then and there authorized by law to administer county, for payment, which payment was rethe same, and which said oath was then and fused. These matters are alleged to be false. there required by law, and was necessary for the Appellant swore they were true. ends of public justice, and was administered for the ends of public justice, whereupon it then

[2] There is nothing alleged to show how and there became and was a material inquiry these matters became, or could become, a before said grand jury, and necessary for the due matter for investigation by the grand jury administration of the criminal laws of said state from a criminal standpoint. The grand jury and for the ends of public justice, to wit:

“(1) Whether said W. D. Alt, 'in the city of would have no right to inquire into other Dallas, in Dallas county, Texas, on the 16th matters than violations of the penal law. It day of June, A. D. 1916, cashed a certain check is not alleged that this testimony was given for and signed by N. A. Dawson; said check in regard to any matter criminal, nor does being of the tenor following: 'No. 77. Stephenville, Texas, 6/16, 1916. 88-357. Cage & it allege any fact that would show that it Crow, Bankers (Unincorporated): Pay to the related to any criminal offense. The grand order of w. D. Alt $100.00 one hundred & jury is only empowered to inquire into viola00/100 dollars. Bexar Construction Co., Per N. A. Dawson. Cashed for NAD.'

tions of criminal laws of Texas. Upon this "(2) Whether the said W. D. Alt in the month subject we cite Gallegos v. State, 50 Tex. Cr. of July, 1916, presented said check hereinbefore R. 191, 95 S. W. 123; Pigg v. State, 71 Tex. described for payment to W. E. Crotty, as- Cr. R. 600, 160 S. W. 691; Scott v. State, sistant cashier of the Cage & Crow Bank, at 72 Tex. Cr. R. 26, 160 S. W. 960; Higgins v. Stephenville, Texas, and whether payment thereof was refused by said W. E. Crotty, assistant State, 38 Tex. Cr. R. 539, 43 S. W. 1012; cashier, as aforesaid; and the said W. D. Alt Weaver v. State, 34 Tex. Cr. R. 554, 31 S. did on the 27th day of September, A. D. 1917; W. 400. Neither allegation in the indictin said county and state, before and to the said grand jury, under the sanction of said oath ad- ment shows even indirectly that it was a ministered to him as aforesaid, deliberately and violation of any criminal law; that is, eiwillfully state and testify in substance as fol- ther to pay the check or to present it to the lows, to wit:

"(1) That in the city of Dallas, in Dallas bank in Erath county for payment and its county, Texas, on the 16th day of June, A. D. refusal. Without in some way showing that 1916, he cashed said check hereinbefore describ- these allegations could form the basis of a ed for said N. A. Dawson.

criminal prosecution which would form the "(2) That some time during the month of July, 1916, he presented said check hereinbefore subject of an inquiry by the grand jury, that described for payment to W. E. Crotty, at the body would have no right to inquire into it. Cage & Crow Bank, at Stephenville, Texas, and There are other matters in the case that that payment thereof was then and there refused might be of importance, presented by bills by said W. E. Crotty."

of exception to charges asked and refused, The indictment, after charging that de- and to the introduction of evidence; but as fendant testified to the truthfulness of both the matter is presented we will not discuss assignments, traverses the truth of both.

them. The indictment was attacked on motion in

The judgment will be reversed, and the arrest of judgment, by general demurrer, prosecution ordered dismissed. and specific exceptions. It is contended the indictment does not show a violation of the

(83 Tex. Cr. R. 332) criminal laws in the matters stated, and that there is no allegation that the grand jury

WOODS v. STATE. (No. 4849.) was examining into any particular matter (Court of Criminal Appeals of Texas. May 1, which constituted an offense, nor was that

1918.) body inquiring of defendant in general terms 1. CRIMINAL LAW 609 – CONTINUANCE –

HEARING. whether he had knowledge of the violation of

Although, under Code Cr. Proc. 1911, arts. any penal offense, or that any questions were 612, 613, upon application for continuance, the asked defendant in regard thereto. The state may controvert and the court determine further contention is made that there is no accused's diligence, it is not within the court's allegation sufficiently showing the material- province on such hearing to pass upon the

weight of the evidence accused desires from an ity of the statement to any matter about absent witness. which the grand jury was authorized by law 2. CRIMINAL LAW 959 - NEW TRIALto act or investigate. There is no allegation

HEARING. to show they were inquiring about any par: sent witness may be looked into on motion for

The probable truth of testimony of an abticular violation of the law, or in general new trial, in connection with evidence adduced terms whether he had knowledge of any vio- upon the trial. lation of the law. This indictment fails to 3. CRIMINAL LAW Om595(3)–CONTINUANCEallege sufficient facts to show the materiali- TESTIMONY OF ABSENT WITNESS. ty of the testimony about which inquiry was testimony of absent witness that prosecutrix had

In rape trial, continuance asked to secure being made. It does allege that appellant taken a man into her room was improperly retestified that he had cashed a check drawn fused.

4. RAPE 57(1)-QUESTIONS FOR JURY. didn't want to do wrong. I asked him to go

In view of Pen. Code 1911, art. 1064, defin-away several times. My limbs were together ing force, and article 1065, defining threat, as and he taken his hands and forced them open.' applicable to rape, evidence in rape trial held not to justify taking it away from the jury. She complained that it was painful, and 5. RAPE Om 40(1)-REPUTATION OF PROSECU- after he got through he went into the other TRIX.

room and came back, and she asked him for Accused's defense in his trial for rape, as

He said he would go serting that prosecutrix had intercourse with a drink of water. another person on the night in question and not and break some ice, and while he was gone with accused, was sufficient to justify introduc- she grabbed her clothes and ran, going to a tion by the state of evidence supporting the restaurant, and reported the rape. She said general reputation of prosecutrix for chastity.

she had a sweetheart, and that she talked to 6. WITNESSES Om 344(2) IMPEACHMENT CHASTITY.

him at the gate on the evening before the inIn rape trial, accused's wife, testifying for cident happened. She said that her sweethim, could not be impeached by evidence that heart Carson talked to her at the gate, but she and accused were married after birth of one or more of their children; it being imma- did not come in the house. Cross-examined terial.

she said that she screamed before she knew Appeal from Criminal District Court, Tar- who it was in the room; that she did not get

out of bed; that she could see who it was by rant County; Bruce Young, Special Judge. Joe Woods was convicted of rape, and ap- at first; later called Mrs. Woods; that she

the moonlight; that she did not call any one peals. Reversed.

made no effort to get out of bed; that she John L. Poulter, of Ft. Worth, for appel- knew Mrs. Woods and the two children were lant. E. B. Hendricks, Asst. Atty. Gen., for in the adjoining room; that she did not call the State.

Mrs. Woods, but had the appellant do so;

that before Mrs. Woods came she told appelMORROW, J. This trial was under an in- lant she did not want to make any trouble dictment for rape charging its accomplish- between him and his wife, and he said he ment by force, threats, and fraud upon the would call his wife; "I went to crying and he person of Ethel Henley. The punishment told me if I cried any more he would kill me;" was fixed at imprisonment for life.

that the reason she wanted him to call Mrs. The injured party was a young girl who Woods was she thought maybe she would had been in the habit of working for some make him go out. She says she was wearing thing like a year, and did not live with her a nightgown and drawers, and that she unfamily, and at the time of the alleged of- buttoned the drawers because he threatened fense was doing housework for the appel- her and told her to unbutton them. He told lant, who was a barber, and whose family her if she did not do it he would kill her. consisted of his wife and children. After

He was in bed some five or ten minutes beprosecutrix was employed appellant bought fore doing anything, just loving her while her some clothes. The house in which they he lay there. “He just told me if I didn't do lived contained about six or seven rooms. what he wanted me to do he would kill me, The injured party slept in a room adjoining while he was lying there loving me.” He that occupied by appellant and his wife. Her went out of the room and came back and she testimony shows that appellant came into her saw something in his pocket that resembled room about 12 o'clock at night. She was

She did not try to get away while awakened by his entering the room and she he was gone; was afraid to; "didn't make screamed, and he sat down upon the bed and any effort to leave while he was gone; I was asked if she was scared. She told him to afraid he would try to kill me. We didn't do leave her alone, that she was sleepy, and any tussling or fighting there on the bed beturned her back on him, and he asked her fore I unbuttoned my drawers, it was after to turn over and talk to him, that he would they were unfastened. The only force he not bother her. She did not turn over at used was to pull one of my legs over, and he that time, but later he took hold of her arm forced me to do it. He started to lay my leg and she did turn over. He laid by her a lover and I tried to keep him. from opening few minutes and put his arm across her my leg. I did not try to get out of the bed. breast. She said:

I tried to get him out. I took my hands and "I tried to get away from him-and he told me if I hollered or made a racket he would kill tried to push him off. My room is right next me, and he got up and went in the other room to the jail building within a very few feet of and came back. His wife came in directly after it, but I was afraid to holler or say anything. he came in; he got her to come in there. I was crying after he told me he would kill me, I knew there were men guarding the jail and and I had him call her. She told me I had it I knew there was another house on the other all to go through with any way and I might as side right close to ours with a number of well go on then. He asked her if she cared and she said no she didn't care. She sat there on people sleeping in it. I did not try to attract the bed a few minutes and talked and then got the attention of anybody. I just tried that up and left. He then pulled off all his clothes is all. When he was taking his clothes off I and had intercourse with me. He forced me to. I was still crying. I did not consent to it. I wasn't doing anything but just laying there. asked him to go and leave me alone; that I When Mrs. Woods went out of the room I

a razor.

ca For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

did not try to go out with her or stay with | That he was unable to tell how long the hyher for I was afraid of him.” She said she be- men had been gone. lieved that appellant would carry out his Appellant made an application for a conthreat.

tinuance on account of the absence of Mrs. Appellant's wife testified that appellant Harret Bryan. This witness resided in Tarcame home about 5:30 o'clock in the evening, rant county, and a subpæna was issued for and went back to work, returning about 9 her a few days after the indictment was o'clock, his usual hour; that Ethel ate no sup- found. The indictment was filed the 8th of per, but during that meal was in the front August, and the trial begun the 20th of Auroom talking to a man whom she said was gust. The absence of the witness was acnamed Carson, and part of the time talked to counted for by the statement that she was him at the gate. Witness claims to have in- secreting herself to avoid service, but that vited both of them to supper, and after ap- her absence was temporary, and her testipellant left Ethel and Carson went into mony could be obtained by a continuance or Ethel's room; that Ethel did not wash dish- postponement. By her he expected to prove es, which was her duty; that she remained that she saw the injured party, Ethel Henley, in her room with Carson until about 9:30 or go out into the street, hail a man who was 10 o'clock. Witness said while she was passing, and take him into the room she ocattending to her children about the house cupied; that the witness did not know the she noticed Ethel's door closed and tried to man; that he remained for some time and open it and found it locked; that she looked did not leave until late that night. The state in at the window and saw Ethel and Carson controverted the motion by affidavit of a witon the bed together in the act of intercourse. ness who claimed that she (Mrs. Harret BryShe further testified that she became angry an) lived near the residence of appellant, and and after the man had gone told Ethel she that the affiant had' several conversations must leave the house the next morning; that with her concerning the injured party (Ethel Ethel began crying and was crying when ap- Henley), in one of which Mrs. Bryan had pellant came home, and appeared very angry. said that she had seen a man standing with After appellant came home she began to the girl at the gate of the house which was wash the dishes. Witness claims to have occupied by appellant, and later they went gone to bed with appellant about 10:30 or 11 in the house together, and the man in a few o'clock; that there were two babies in the minutes came out and went away, and some room and one of them was sick; that she time after that had talked with Mrs. Bryan was not in a good humor and did not go to again and that Mrs. Bryan said she was missleep before the officers came in; and that taken about the matter. she knew her husband did not leave the [1] This was the first application for a conroom before that time; that about 30 min- tinuance. There was no contest of the diliutes before that time she heard the gate slam. gence. The court qualifying the bill says that She claims to have made a statement to the the affidavit mentioned above was presented officers the morning after the arrest of appel- and considered by him along with the applilant in accord with that testified to on the cation for a continuance, “and the application trial.

was thereupon overruled. We understand Several persons testified that they lived from the record that the court was influencnear by and heard no disturbance. The keep-ed to make the order refusing to continue er of the restaurant testified that the girl fect of the affidavit controverting the motion

the case by the affidavit mentioned. The efcame to the restaurant, first to the window, was to cast doubt upon the truth of the tesand called for help. She was crying and timony of the absent witness by reason of without shoes. She could not tell anything. her having made alleged contradictory state“He tried to kill me,” is all she said. Anments with reference to the matter. The officer was called. She had her dress in her state was privileged under article 611 to hand, and said the man tried to kill her. “If have controverted under oath the diligence I didn't do this, he tried to kill me.” She said set up in the application, and the court might he had a razor. The county physician made have inquired into the question of diligence an examination of the girl and testified that thus raised. Articles 612 and 613, C. C. P.; in his opinion from the appearance of the Howard v. State, 8 Tex. App. 53; Hardin v. vagina she had had intercourse with some State, 40 Tex. Cr. R. 208, 49 S. W. 607; Atone. That she was quite nervous. That the taway v. State, 31 Tex. App. 475, 20 S. hymen was entirely gone. “That if the hy-W. 925; Lane v. State, 28 S. W. 202. The men had been penetrated that night fragment diligence being sufficient, however, it was edges of the ruptured hymen would still be not within the province of the court on the showing there; I think it would, undisput- hearing on the application for a continuably, but I didn't notice anything like that in ance to pass upon the weight of the evidence this girl. The hymen disappears from differ- which appellant desired from the absent witent sources. The hymen could have entirely ness. disappeared in an entirely virtuous girl. The [2] The probable truth of the testimony of absence of the hymen is not of itself neces- the absent witness may be looked into on

* *

evidence adduced upon the trial. Steel V., sufficient to constitute all that is required. State, 55 Tex. Cr. R. 551, 117 S. W. 850, and That is Mr. Branch's conclusion from the cases cited. The case of Roquemore v. State, decisions. Branch's Ann. P. C. & 1782. It 54 Tex. Cr. R. 593, 114 S. W. 140, is on the is the rule recognized in some of the authorfacts touching the application for continuance ities mentioned by appellant, notably Perez quite similar to this. From it we take the v. State, 50 Tex. Cr. R. 34, 94 S. W. 1036. following quotation:

See, also, Cole v. State, 57 Tex. Cr. R. 51, “The state contested said application, not on 123 S. W. 409, 136 Am. St. Rep. 973; Sharp the ground of want of diligence, but on the v. State, 15 Tex. App. 185; Sawyer v. State, ground that the testimony of said witnesses is 39 Tex. Cr. R. 557, 47 S. W. 650. Under the not probably true. * We are of opinion that the court would not be authorized, in facts and this rule we do not think that the passing upon an application for continuance, to evidence was such as to justify the court in pass upon the truth of what a witness would taking it away from the jury. testify to on the trial by proving contradictory

[5] The appellant's defense, asserting that statements by witnesses. The law of Texas has wisely left the trial of all issues of fact as well the injured party had intercourse with anas the credibility of the witnesses to a jury, and other person on the night in question and this court is of opinion that this province of a not with appellant, was, we think, sufficient jury cannot be invaded by the court, and would under the authorities to justify the introducbe establishing a precedent that would ultimately result in confusion and a state of af- tion by the state of evidence supporting the fairs that could not be easily remedied. The general reputation of the prosecuting witapplication for continuance, we think, shows ness for chastity. Jacobs v. State, 66 Tex. proper diligence."

Cr. R. 146, 146 S. W. 558. [3] If appellant could prove by Mrs. Bry- [6] The state undertook to lay a predicate an, as he claims in his motion, that she had on cross-examination of appellant's wife to seen a man go into the house with Ethel show that appellant and his wife were marHenley and go into her room, it would have ried after the birth of one or more of their been a material fact. Ethel Henley denied children. We think that such impeachment that this occurred, and Mrs. Woods affirmed of her would have been on an immaterial that it took place, and circumstantially that issue, and one which would have been inadthe man Carson had intercourse with the missible and harmful to appellant, in that girl on the night of the alleged offense. The it would have tended to burden his case with fact shown in the affidavit attached to the evidence that he and his wife had lived in motion that Mrs. Bryan had afterwards re- adultery before their marriage, a criminal tracted her statement, or changed it, would offense in no way connected with that under have gone to the weight of her evidence and consideration. This matter as presented in to the credibility. The state used as evi- the bill does not make it clear that the imdence against appellant the fact that some peachment took place. one had had intercourse with the girl on the

The assignments of error not discussed night in question, and counsel for appellant have been examined, and, we think, present earnestly insists that the state's evidence no reversible error. The evidence adduced fails to meet the measure of the law in the and the nature of the case are such that, in prosecution for rape by force, threats, and our opinion, the error committed by the fraud, in that there was no fraud practiced, trial court in refusing to continue or postand that the failure to make outcry and the pone the case for the purpose of permitting extent of the resistance are not sufficient, appellant to obtain the testimony of Mrs. citing several cases, as follows: Perez v. Bryan was material, and requires a reversal State, 50 Tex. Cr. R. 34, 94 S. W. 1036; of the judgment; which is ordered. Arnett v. State, 40 Tex. Cr. R. 617, 51 S. W. 385; Elliott v. State, 49 Tex. Cr. R. 435, 93

(83 Tex. Cr. R. 343) S. W. 742; Smith v. State, 56 Tex. Cr. R.

SORIA V. STATE. (No. 5007.) 316, 120 S. W. 188; Mooney v. State, 29 Tex. (Court of Criminal Appeals of Texas. May 1, App. 257, 15 S. W. 724; Rhea v. State, 30

1918.) Tex. App. 483, 17 S. W. 931; Price v. State, 1. HOMICIDE 100—ASSAULT TO MURDER36 Tex. Cr. R. 143, 35 S. W. 988; Cox v. PRINCIPAL State, 44 S. W. 157; Rhem v. State, 29 Tex. If, after accused cut prosecutor, accused's App. 509, 16 S. W. 338; Rice v. State, 37 brother shot prosecutor to defend accused from

attack apparently about to be made by proseTex. Cr. R. 38, 38 S. W. 801.

cutor, the brother not knowing of the original [4] Our statute (article 1064, P. C.) de difficulty and coming upon accused and prosefines force, and article 1065, P. C. defines cutor and finding them in controversy, accused threat, as applicable to this offense. The

would be responsible as principal only for the rule seems to be that where, as in this in- 2. CRIMINAL LAW 775(2)—ALIBI-INSTRUC

for the .

Omw stance, threats and force are charged in the

TIONS. indictment, and there is evidence of each, In trial for assault to murder, evidence held it is not necessary that either the force or to require instruction on alibi. threats alone measure up to the standard 3. CRIMINAL LAW Ow775(3)—ALIBI-INSTRUC

TIONS. of the statutory definition. The cogency In trial for assault to murder, an instruction which one contributes to the other may be that, if the evidence raises or leaves a reason

Om For otber cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

able doubt as to accused's presence at the scene fore that night. Just what the relations and of the difficulty at the time it occurred, to ac- situation of the parties were at the time of quit defendant and say by the verdict not guilty, the difficulty is not further described than as was sufficient in form.

stated. Appeal from District Court, Edwards

[1] The court charged upon principals County; James Cornell, Judge.

both from the cutting by appellant and Tomas Soria was convicted of aggravated shooting by his brother. The evidence is assault and battery, and appeals. Reversed very meager in regard to this proposition. and remanded.

The knife wound was in front and the pisWill A. Morriss, of San Antonio, for appel- tol shot entered from the rear. This formed lant. E. B. Hendricks, Asst. Atty. Gen., for the basis for a charge on principals. We are the State.

of opinion that, if upon another trial the

court should charge with reference to prinDAVIDSON, P. J. Appellant, under an cipals, he should give the converse of the indictment charging assault to murder, was proposition. This testimony is very meager convicted of aggravated assault and battery. indeed, and does not show, outside of the tes

The difficulty occurred at a Mexican dance timony of the state's witness, how the matin a schoolhouse. The alleged injured par- ter came. There were a number of people ty, Apalonia Gloria, testified he heard a tap- outside of the dance hall at the time of the ping or knocking on the north wall of the trouble. If the assault was made as indicatschoolhouse and left the dancing room to ed, and the two were acting together for the see what it meant. When he reached the purpose of doing what they did, or if they place he urged the parties to cease such were aiding and encouraging each other in knocking; that appellant cut him with a the assault, the question of principals would knife; that he stooped to reach for a rock be suggested, but it is equally as true if they and as he did so appellant's brother shot were not, and that the brother, if he shot the him. He testified this difficulty occurred at pistol, did so to defend the other brother the northwest corner of the schoolhouse, per- from an apparent attack about to be made haps a little east of the northwest corner, by Gloria with a rock, he not being a particalong the north wall. His wife testified ipant in the original difficulty and coming that she was sitting on a bench on the west upon the parties and finding them in that side by a window out of which was broken relation, he would not be considered a prina pane of glass, and that the difficulty oc- cipal. If he did this, then the question of curred near the southwest corner of the self-defense would be in the case in favor of house. She admitted, however, that she was the brother who shot the pistol in defending only testifying as to what her husband told his brother from an attack, or an apparent her about it. The injured party, Gloria, tes or contemplated attack, by Gloria. Where tified that he was not drunk, but had taken the testimony is so uncertain and erratic as several drinks, and had a bottle of whisky that disclosed, we are of opinion that, if a in his overcoat pocket in the dancing room. charge on principals is given, the converse The other witnesses who testified in regard of it should also be given. As given, it made to it stated that he was very drunk; espe- appellant responsible as a principal for the cially the sheriff and doctor who attended shooting by his brother. If he made the him almost immediately after the difficul- first attack without having an understanding ty. The doctor testified he was too drunk to with his brother, and it was not a joint atmake a coherent statement. Other witnesses tack of the two, then he would only be retestified that the pane of glass was not sponsible for the use of the knife. See Gufbroken out of the window mentioned by the fee v. State, 8 Tex. App. 187. wife of the assaulted party. The defendant [2] Proper exceptions were reserved to the testified that he was in the house at the charge of the court with reference to giving time of the difficulty, took no hand in it, and the law of principals, and also to the court's knew nothing about it, except he heard a failure to charge on alibi and refusal to give pistol shot on the outside north of the house. requested instructions presenting this theory He also testified that his brother was in the of the law. We are of opinion that the dancing room at the time of the trouble; charge on alibi should have been given. If that he did not own a knife or a pistol. The he was in the house at the time of the diffitwo brothers spent the night at another Mex- culty, he could not have been a participant in ican's house after the difficulty, and the next the difficulty, and therefore was not present. morning the sheriff came early to arrest See Colbert v. State, 52 Tex. Cr. R. 486, 107 them and examined the room where they s. W. 1115; Gallaher v. State, 28 Tex. App. slept, as did the owner of the house, and 247, 12 S. W. 1087; Walker v. State, 6 Tex. found neither a pistol nor a knife upon the App. 577. person of appellant, but on the brother they [3] There is some suggestion that the refound a small penknife. There are no de- quested instructions on alibi were not suffitails as to how the difficulty came up except cient in using the following language: After as stated. The parties were strangers to setting out the usual stereotyped form that

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