the verdict was reached, but before it was returned into court; and some say that it was after the verdict was rendered and the jury discharged, and that the remark was made by Mr. Crockett while they were on the way downstairs; but each and all of them testify it had no influence on any of them. Appellant does not contest the fact that he knew Mr. Crockett was aware of the circumstance mentioned, prior to the time he accepted him on the jury. Each juryman was called on to testify as to what was said about the prior verdict. One of the jurymen testified that some one remarked about appellant having been formerly convicted and had been sentenced to ten years in the penitentiary (that is, asked if this was not the case in which he had been formerly convicted), when the foreman promptly instructed them that this could not be considered, and they must not discuss it. A majority of the jury testify they heard no such remark, and all of them say that it was not discussed, and no attention was paid to the matter. While several testify that before going on the jury they knew appellant was convicted on the former trial, they state that on their examination, when asked, they so informed appellant's counsel. The record discloses that on the former trial appellant received a sentence of ten years, while on this trial he gets only seven. It may be said that the evidence of all the jurymen discloses there was no discussion of the former conviction, although it may have been incidentally mentioned by one juryman, who was at once informed that this matter must not be discussed nor considered, and they all say it was not discussed nor considered. If it had been discussed, of course we would not be inclined to inquire into whether it had weight or not; but inasmuch as all say it was not discussed by any of them, but at most only incidently mentioned in the nature of a query, this presents no error. [5] As to the remark of Mr. Crockett, it is practically certain that it was made after the jury had all agreed on the guilt of defendant, if in fact it was not made after the jury was discharged, as contended by Mr. Crockett and some others. When they began a discussion of the penalty, four were for 5 years', while the remaining eight were for various numbers of years up to 20 years', confinement in the penitentiary; and, instead of it appearing that the four were caused (if the remark was made prior to the time the punishment was agreed on) to increase the number of years from what they first thought proper very much, those for a greater number of years afterwards came down considerably more than they were led to increase the punishment. In the case of Arnwine v. State, 54 Tex. Cr. R. 219, 114 S. W. 796, the matters were carried much further than in this case, and it was held not to present reversible error. The mention of these matters in this case did not induce them to find appellant guilty, for they had already done so before these facts were mentioned, as shown by the testimony. The mention of the number of years given appellant did not influence them apparently, for they proceeded to give him less than on the former trial, and they nearly all swear they did not hear the query when made about the former conviction, and those who say they did hear it say it did not influence them and was not considered by any one in arriving at the number of years of punishment; and a majority of the jury say the remark of Mr. Crockett was made after the verdict was reached, and all say it was not discussed, and all say it did not influence them in the least, and the punishment bears evidence of this fact. [6] The propositions presented by the sixth, seventh, eighth, ninth, and tenth assignments of error present to us a serious question, and one to which we have given much thought and study. In the case of Pefferling v. State, 40 Tex. 487, it was held: "In prosecutions of this character, the proof of the offense depends very frequently upon the testimony of the party charged to have been outraged, and in most cases, to a very great extent, upon the truth and credibility of her evidence, and unquestionably every reasonable test should be applied to her integrity, for the safety of the accused. Hence the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discover the offense after an opportunity to do so are circumstances tending to discredit her testimony. But, if the absence of these circumstances tend to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence." The rule thus announced by Judge Moore has been adhered to in an unbroken line of decisions, · so far as we have been able to ascertain, and therein it is announced that the particulars she detailed cannot be given, unless they come within the rules governing res gestæ testimony, and in this case the witness was not permitted to do so, but a person will be permitted to testify as to her state and appearance.. [7] In this case it is shown that, if the rape occurred, it was between 7 and 8 o'clock in the morning, and the appellant developed that Mrs. Vaden remained at appellant's farm, where she was housekeeper, until after she had gotten dinner, and did not report the matter to any one until after 12 o'clock. To meet this the state proved that Mrs. Vaden had sent word to Mrs. Matthews asking her to come to see her. Mrs. Vaden testified she was afraid to leave the place until not be raised for the first time on motion for rehearing. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.*] 15. CRIMINAL LAW (§ 507*)—ACCOMPLICES. A witness is not an accomplice merely because he received from accused a specified sum to procure prosecutrix to write a letter asking for the dismissal of the prosecution for rape, or merely because he obtained a part of the amount so paid. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. 8 507.*] Davidson, J., dissenting. Appeal from District Court, Collin County; F. E. Wilcox, Special Judge. covered as damages, to which question Matthews answered "No." Appellant then asked him if he did not think he was entitled to it. Whatever may have been the witness' opinion as to what he thought he ought to be entitled to would be inadmissible, when he answered he was not going to get any part of it. Matthews was in no way related to Mrs. Vaden, and as a matter of law was not entitled and could recover no part of any sum that Mrs. Vaden might get, if anything; and, as he had testified that there was no agreement or understanding that he was to be given any part of it, his opinion about what Mrs. Vaden ought to do in case she recover Ed Burge was convicted of rape, and he ap-ed would not be legitimate testimony. peals. Affirmed. G. R. Smith and W. R. Abernathy, both of McKinney, for appellant. L. J. Truett, Co. Atty., and Sam Nethery, Asst. Co. Atty., both of McKinney, and C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was prosecuted and convicted of rape by force, and his punishment assessed at seven years' confine ment in the state penitentiary. The record is rather voluminous, and, in passing on the questions presented, we will take them up in the order discussed in appellant's brief and in their able oral argument before this court. He first discusses at length the improbability of the testimony for the state being true, and, while admitting that Mrs. Vaden testifies to facts which show that she was raped by appellant, yet it is insisted that the offense could not have been committed in the way testified to by her. Enough of the testimony will hereinafter be stated to show, we think, this contention ought not be sustained by us. [3] Dr. T. W. Wiley, after qualifying as an had testified that a woman in the position expert, in answer to a hypothetical question stated, and under the circumstances enumer ated, could not be raped without leaving evidence of physical violence on her person, and he was then asked if a man could have carnal intercourse with a woman in that position with her consent, and it is shown by the bill that he would have answered that he could not. In this case there was no ques tion of intercourse by consent. Mrs. Vaden testified to a case of rape; appellant testified had never had intercourse with Mrs. Vaden, that he at this time nor at any other time and there were no facts and circumstances showing that he had intercourse with her, unless the version of Mrs. Vaden be accepted as true; and, the doctor having testified that in his opinion the act could not have taken place without leaving marks of physical violence (there being no marks of violence on Mrs. Vaden), the court did not err in his ruling. The record discloses that the doctor testified: "In my opinion, a woman raped under those circumstances, without marks of physical violence upon her person, would have to consent. In my judgment she could not be raped without marks of physical violence upon her." [1,2] The next contention is: "When the state has introduced a witness, who is a material witness for the state, and who testifies to material and prejudicial facts against the defendant, such defendant, on cross-examination, has the right to show any fact or [4] In the fourth and fifth assignments in circumstance which will affect the credit of the brief are presented the questions that the the witness before the jury." This is a jury received other and additional testimony sound proposition of law, and, if the court after they retired, and discussed the former had excluded any such testimony, it would conviction of appellant. When the motion be error. J. M. Matthews was a most material for a new trial was heard, each juryman was witness for the state, and testified, among called and testified, and each and all virtualother things, to appellant paying or causing ly agree that nothing of this character took to be paid to the husband of Mrs. Vaden place until after the vote had been taken in $750 to keep her from attending court and which they all agreed upon appellant's guilt. testifying against him; the court permitted Some of the jurymen testify that, before they it to be shown that the husband of Mrs. had agreed on the term of punishment to be Vaden gave him (Matthews) one-fourth of assessed, one of the jurymen, a Mr. Crockett, this amount. Appellant then developed that, remarked that he was surprised that appelin addition to having this prosecution lant took him on the jury; that appellant brought, Mrs. Vaden had filed a suit against was aware that he (the juryman) knew that appellant for $50,000 damages. In cross-ex- he (appellant) had separated a man and his amination of Matthews, appellant asked him if wife prior to this time. Some of the jurymen he (Matthews) was going to get one-fourth or say that this was before the verdict was a child's part of the amount sued for and re-finally arrived at; some say that it was after already done so before these facts were mentioned, as shown by the testimony. The mention of the number of years given appellant did not influence them apparently, for they proceeded to give him less than on the former trial, and they nearly all swear they did not hear the query when made about the former conviction, and those who say they did hear it say it did not influence them and was not considered by any one in arriving at the number of years of punishment; and a majority of the jury say the remark of Mr. Crockett was made after the verdict was reached, and all say it was not discussed, and all say it did not influence them in the least, and the punishment bears evidence of this fact. the verdict was reached, but before it was them to find appellant guilty, for they had returned into court; and some say that it was after the verdict was rendered and the jury discharged, and that the remark was made by Mr. Crockett while they were on the way downstairs; but each and all of them testify it had no influence on any of them. Appellant does not contest the fact that he knew Mr. Crockett was aware of the circumstance mentioned, prior to the time he accepted him on the jury. Each juryman was called on to testify as to what was said about the prior verdict. One of the jurymen testified that some one remarked about appellant having been formerly convicted and had been sentenced to ten years in the penitentiary (that is, asked if this was not the case in which he had been formerly convicted), when the foreman promptly instructed them that this could not be considered, and they must not discuss it. A majority of the jury testify they heard no such remark, and all of them say that it was not discussed, and no attention was paid to the matter. While several testify that before going on the jury they knew appellant was convicted on the former trial, they state that on their examination, when asked, they so informed appellant's counsel. The record discloses that on the former trial appellant received a sentence of ten years, while on this trial he gets only seven. It may be said that the evidence of all the jurymen discloses there was no discussion of the former conviction, although it may have been incidentally mentioned by one juryman, who was at once informed that this matter must not be discussed nor considered, and they all say it was not discussed nor considered. If it had been discussed, of course we would not be inclined to inquire into whether it had weight or not; but inasmuch as all say it was not discussed by any of them, but at most only incidently mentioned in the nature of a query, this presents no error. [5] As to the remark of Mr. Crockett, it is practically certain that it was made after the jury had all agreed on the guilt of defendant, if in fact it was not made after the jury was discharged, as contended by Mr. Crockett and some others. When they began a discussion of the penalty, four were for 5 years', while the remaining eight were for various numbers of years up to 20 years', confinement in the penitentiary; and, instead of it appearing that the four were caused (if the remark was made prior to the time the punishment was agreed on) to increase the number of years from what they first thought proper very much, those for a greater number of years afterwards came down considerably more than they were led to increase the punishment. In the case of Arnwine v. State, 54 Tex. Cr. R. 219, 114 S. W. 796, the matters were carried much further than in this case, and it was held not to present reversible error. The mention of these matters in this case did not induce [6] The propositions presented by the sixth, seventh, eighth, ninth, and tenth assignments of error present to us a serious question, and one to which we have given much thought and study. In the case of Pefferling v. State, 40 Tex. 487, it was held: "In prosecutions of this character, the proof of the offense depends very frequently upon the testimony of the party charged to have been outraged, and in most cases, to a very great extent, upon the truth and credibility of her evidence, and unquestionably every reasonable test should be applied to her integrity, for the safety of the accused. Hence the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discover the offense after an opportunity to do so are circumstances tending to discredit her testimony. But, if the absence of these circumstances tend to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence." The rule thus announced by Judge Moore has been adhered to in an unbroken line of decisions, . so far as we have been able to ascertain, and therein it is announced that the particulars she detailed cannot be given, unless they come within the rules governing res gestæ testimony, and in this case the witness was not permitted to do so, but a person will be permitted to testify as to her state and appearance.. [7] In this case it is shown that, if the rape occurred, it was between 7 and 8 o'clock in the morning, and the appellant developed that Mrs. Vaden remained at appellant's farm, where she was housekeeper, until after she had gotten dinner, and did not report the matter to any one until after 12 o'clock. To meet this the state proved that Mrs. Vaden had sent word to Mrs. Matthews asking her to come to see her. Mrs. Vaden testified she was afraid to leave the place until appellant had gone away; that she knew he was going to leave as he had told her to get early dinner because he was in a hurry to get off; that, as soon as he left, she went to the house of Mrs. Matthews and there made the first complaint, and then went to the telephone and reported the matter. Mrs. Matthews was permitted to testify that when Mrs. Vaden arrived at her house she made complaint to her; that she was crying, jerking, and very nervous; that Mrs. Vaden remained at her house until Sunday, and she remained in that condition while she was there. J. F. Carter was permitted to testify that about noon on the day of the alleged assault she came to the store to telephone and was sniffing and crying. J. M. Matthews was permitted to testify that when he returned home that evening Mrs. Vaden was at his house, and remained there until Sunday evening, when she went to Bob Smith's; that when he got home he saw Mrs. Vaden; that her face was red and swollen; that she was crying and trembling and very nervous, and she remained in that condition until she left his home on Sunday evening. Bob Smith was permitted to testify that when Mrs. Vaden arrived at his house Sunday evening she appeared to be in "wrecked, nervous condition." All this testimony was objected to by appellant, and we may say that the testimony of the witnesses cover a period of two days after the alleged assault; that of Mrs. Matthews and Mr. Carter relating to a time about three or four hours after the alleged offense, and that of the other witnesses tending to show this condition of nervousness, etc., continued for that length of time. We do not think it can be seriously contended that evidence of the appearance of Mrs. Vaden's state and appearance when she complained to Mrs. Matthews, and Mr. Carter saw her, is not admissible. Certainly this much is admissible under all the authorities from this state cited in appellant's brief. did not tear her clothing or make marks on her person visible to the eye, yet the violence used to her person was of that nature to outrage the feelings of a chaste female, produce, as human experience teaches us would be the case in a case of rape by force on a refined and pure woman, a state of nervousness visible to the eye, and the shame and humiliation of it should cause her to shed tears and tremble, why is not such testimony admissible? And if the shock is of that severe character that she remained in this distraught, nervous condition for two days, is not that fact also admissible in evidence? This lady may be a consummate actress, as contended by appellant's able counsel before this court, and these evidences of a nervous, distraught condition but assumed by her, yet, without positive evidence of such fact, shall we say that such is the fact and the testimony inadmissible? The fact that she remained at the house for three or four hours, and did not report the matter until she arrived at Mrs. Matthews' home, might present a state of facts upon which appellant's counsel could base a cogent argument to the jury that her condition and state were assumed, and the tears shed were not occasioned by outraged feeling, but was but the play of a designing woman, but this would go to its weight and not to its admissibility. We know of no act that would more completely shock a modest female than to forcibly violate her person, and the pain and humiliation caused by such act is calculated to produce a nervous condition that may last this length of time. Of course, we are not passing on the genuineness of this state of mind in Mrs. Vaden; that was for the jury under the evidence. She was rigidly cross-examined; her life inquired into for a number of years; her misfortunes in the marital state exposed; and the question of whether or not she was of that character and nature of a woman that such an act, if committed, would naturally produce the condition testified to by the witnesses we are satisfied was all ably argued to the jury, based upon this character of testimony. [8] The only serious question presented is: Was it permissible for Mrs. Matthews to testify that that condition continued to exist from Friday afternoon until she left Sun- The time Mrs. Matthews and Mr. Carter day afternoon, and was it permissible for first saw her was not too remote from the Mr. Matthews to testify that this was her transaction to render the testimony inadmiscondition when he saw her late Friday even-sible, and, they having so testified, we think ing, and that it continued until Sunday after- it permissible for the state to show that this noon (that is, all the time she remained at state continued for a reasonable length of his house), and was it permissible for Mr. time. Smith to testify that she was in a "wrecked, nervous condition" when she arrived at his home Sunday afternoon? If there had been marks of physical violence on her, and each of these witnesses saw this evidence of physical violence on her at these various periods of time, there can be no question that the testimony would be admissible; if there had been rents in her clothing, and these witnesses saw the tear at the various times mentioned, it would be admissible; and if there [9] J. M. Matthews testified he was a tenant on appellant's place, and after testifying to the condition of Mrs. Vaden (then Mrs. Proctor), on the day of the alleged offense, and in regard to the several conversations he had with appellant, among other things, testified: "I think the next conversation we had on it was in October, and at that time he asked me if we didn't correspond with this lady (that is, if my wife and I didn't correspond with Mrs. Proctor), and I told heard from her, and I told him my wife had yes, she did say if she could get the case disa letter from her a few days previous to missed and save her character that is all that, and he wanted to know if I didn't think that she would care about. That is all that I could square the thing up for him, and I happened the first trip. The second trip told him I didn't think I could; that was the Clyde spoke to me about that, and Mr. Burge way the conversation started. He said he did not speak to me about the second trip; thought I could, and insisted on it, and I told Clyde said that I must go back and see furhim I would do what I could, and he wanted ther, and I came back and reported the conme to go to Hillsboro, and I went. I went to dition of affairs, and it wasn't very satissee if I could effect a compromise in any way factory. I made the report to both of them and get it out of court. In that connection when I came back the first trip, and I don't he said he didn't want to be mixed up in it think the defendant said anything in that much; that Clyde was his overseer out connection. With reference to the second there; that he had turned the business over trip, Clyde said I must go back and get someto Clyde, and Clyde was boss. He said what-thing more definite; that they didn't know ever Clyde said was all right; that he would what to do about that, and for me to go back make Clyde his agent, and I was to get my and find out what they would do, if she instruction from Clyde, and he would give would sign some papers or would leave the them to Clyde. Clyde and Mr. Burge both state, or, if she would leave the state, how furnished me the means to go to Hillsboro. much money she wanted to leave the state, The first trip to Hillsboro, that I made, and I was authorized to tell her that they Clyde furnished me $10 and Mr. Burge fur- would not appear against the boy (that is, nished me the rest, which was $2. I told against Barney Young, her son). That conthe defendant, Mr. Burge, that I would have versation was with Clyde, and Clyde furnishto have some clothes to wear down there, ed the money to go down there that trip; I and he told me to come and go with him and don't remember how much money he furnishget them, and he took me to a store over ed, but I think, though, it was $12. I went here on the northeast corner of the square, by myself. When I got down there I went what used to be called the Mississippi Store, to see Mr. and Mrs. Vaden, and I told them where that building fell down, and introduc- that they were anxious to get it settled, and ed me to one of the clerks, whom he called I thought Mr. Burge would agree to terms Ben Estes, and told him to let me have what not to appear against the boy, and that was I wanted. I got a suit of clothes, pair of about all there was to tell them; they just shoes, shirt, collar, and tie, I believe, and sent me down there to find out what the oththose goods cost $17.80. I went by myself er side would do and get the other side to to Hillsboro, and when I got down there I make a proposition. Mrs. Vaden said she went to see Mrs. Vaden. I saw Mr. Vaden would not leave the state under any circumfirst and told him I was down there looking stances, and the only way they could get the for a job, and he told me that I could prob- case dismissed would be for them not to apably get a job there with the Katy, and the pear against Barney, for Mr. Burge not to case was brought up, and I told him that I appear against Barney, and for the county thought Mr. Burge was anxious to get the attorney to dismiss the case and save her case out of court. That was all that I told character. When I came back I reported to him at that time. I did not make any ar- Clyde; I don't think I reported to Mr. Burge rangements with him with regard to the that time. The next time Clyde went with matter at that time. After I talked with him me, and Clyde paid my expenses on that I went out to his house and saw Mrs. Vaden, third trip. I do not know how much the and, after she made some statement to me, expenses were. The expenses, I think, of the then I made her a statement with regard to third trip was $12. I do not remember what the case. We got to talking about the case, was said between me and Clyde, before we and said that Mr. Vaden objected to her started on that third trip, more than he just coming to court, and set his foot down on it wanted me to go along with him and give that she couldn't come, and she asked me him an introduction to them and kind of go what she should do about it. I told her I along as giving him an excuse for going. At was incapable of advising her, but it seemed that time I think we left McKinney over here that she had a good home and a good man, at the Interurban from the station; I think and, to keep down family trouble, if they so; I am not sure; there were several times could keep things squared up some way it we did not leave from the station, and I might be best for her, and she said that she don't know that might have been one of the didn't know what about it. And that if times. When we got down there Clyde and I Mr. Burge would not appear against her son went to the store, and I introduced him to Barney (wherein Barney was charged with | Mr. Vaden, and they talked the case over (I assaulting appellant because of this matter) didn't hear all that was said), and then we that she would not appear against him, and went out to the house. I did not hear all she said that, if she could get the county at- that was said between Clyde and Mr. Vaden. torney to dismiss the case that under the We went to the house, and Mrs. Vaden came circumstances, she might agree to it She in, and Clyde wanted her to sign papers stat |