Appellant was indicted for incest with his niece, Cassie Dunn, the daughter of his sister, was found guilty and assessed the highest punishment.
The State introduced said Cassie Dunn as its first witness. She testified on direct examination to her relationship to appellant as alleged in the indictment; that she was twenty years old June 18, 1914; that for the four or five years preceding this trial, which occurred in February, 1915, she had been living with and making her home with appellant; that when she first went to living with him his family consisted of himself and two sons, then nearly grown; that about two years after she went to live with appellant, her sister Fannie, two years younger than she, also arrived there and thereafter made her home also with her uncle; that both appellant's said sons married, one more than a year before this offense is alleged to have been committed and the other some time before that, and that both of them thereafter ceased to live with their father but had their own homes and lived at their own homes in the same community; that when these two sons of appellant thus married and removed from appellant's and established their own homes, she, appellant and Fannie constituted the family; that after Fannie arrived at appellant's and made that her home, she, Cassie, did the housekeeping, cooking, washing and milking and that when Fannie was there Fannie assisted her in the discharge of these duties; that she and Fannie had five other uncles living in the same community of appellant, appellant's brothers, whom Fannie visited from the time of her arrival at appellant's until after this offense was committed; that she would sometimes go and stay a week or two at a time, though not very often, but she would go and stay with them whenever she wanted to. "When Fannie would go away that would leave Uncle Alfred (appellant) and myself alone. When Fannie was gone I did the milking and cooking; I kept house and made up the beds, etc." That when Fannie was there she assisted Cassie in these duties; that during all that time she, Cassie, had no sweethearts or beaux and kept company with none such; that she occasionally went to parties, gatherings, singings and things of that kind but not often; that she went more before appellant's two sons were married, they taking her; that whenever she went, either appellant or one of the sons would carry her; that appellant carried her to church but did not carry her to parties and occasionally took her to town; that she left appellant's, who lived in Coryell County near Turnersville, and went to her father's home, who is shown to have lived in Clyde, in Callahan County, on June 19, 1914; that "Uncle Alfred (appellant) treated me just like he would one of his own children all the time I lived there. He treated me right, — just like he would his own girl. Anything I wanted I got it, dresses or anything else. . . . I love every one of my uncles. Yes, I expect I love Uncle Alfred better than any of the balance of my uncles. I have loved him all the time. . . . I was pregnant when I went home in June, 1914. I had been home about a month before my people found out that I was pregnant. Dr. Bailey is the *Page 501 man that told them about my being pregnant. I was sick and we called in Dr. Bailey to wait on me, and he told them what was the matter with me. I have a child now. It was born the 29th of October."
The above is substantially and fully everything this girl testified on her said direct examination. It will be seen therefrom that unquestionably her testimony was favorable to the State and in no way unfavorable thereto; that it showed practically that appellant had the opportunity and he alone had the opportunity to have had sexual intercourse with this girl; that someone did, about the latter part of January, 1914, is unquestionably established, not only by her testimony, but by all the other testimony in the case.
Immediately upon her being turned over to the appellant for cross-examination he had her, the very first thing, to testify as follows: "Henry Dollins is the father of my child. My uncle never did have any illicit intercourse with me in any way. Never did ask me to. Never asked me to yield to him in any way. During the entire time that I lived with my uncle he never did undertake or try to get me to do anything that was wrong. I have just told you that Henry Dollins was the first person that ever had intercourse with me. The first time Henry ever had intercourse with me was at Hazel Ford's. Hazel Ford lived about a mile from where my uncle Alfred lived. I recall the fact that Hazel Ford and his wife went to Meridian in January, 1914."
In view of several questions raised by appellant's bills of exceptions, we deem it proper to here state what the trial judge said, and sometimes repeatedly said, in explanation and qualification of appellant's said several bills.
In one he said: "It is further apparent from the whole testimony that a conspiracy existed between the defendant and the prosecuting witness (Cassie Dunn) not only to commit the crime of incest, but to go further and suppress knowledge that the child that was to be and in fact was later born, was the fruits of the crime of incest, and the conspiracy extended even further on the part of the prosecutrix and defendant and looked to a resumption of their unlawful relations with each other as soon as the birth of the child had been accomplished and the public had been quieted, and the relatives of the prosecutrix and defendant satisfied regarding the defendant's connection with prosecutrix. It is evident also that the conspiracy extended and contemplated that both prosecutrix and defendant would deny that the defendant was the father of the child in question and commit perjury with regard thereto, if necessary, in order to keep secret the fact that said child was the offspring of incestuous intercourse, and in order to carry out their design that such intercourse might be resumed by them. . . ."
In another he said: "The witness (Cassie Dunn), though used by the State, had sworn on the trial that the defendant was not the father *Page 502 of her child and showed to be very friendly toward the defendant and willing to swear anything that she could that would be in his favor."
In another he said: "The witness was extremely unfriendly to the State and sometimes sullen and openly testified to anything that she thought would be beneficial to the defendant."
In another he said: "The prosecutrix testified adversely and injuriously to the State on the trial of this case. In fact, she was friendly to the defendant, and in his hands `like clay in the potter's hands.'"
Bob Hollingsworth, a cousin of appellant, testified that in April or May, 1912, one morning between daylight and sun up he went to appellant's house to see him on some business, and as he walked up to the yard gate, he looked into the house and saw Cassie Dunn sitting in appellant's lap; that at the time neither Cassie nor appellant saw him, but before he could call, a dog barked, which attracted their attention; that they then both looked and saw him, and Cassie at once got up out of his lap and sat in a chair beside him.
Oscar Easter for the State testified that in the spring of 1914 he went, late in the evening from Neel Dollins to Tom Dollins to get some clean clothes, they both living in the same neighborhood of appellant; that appellant lived somewhat between the said two Dollins, and on this occasion he went by appellant's to see him; that in approaching appellant's lot he saw appellant therein feeding or preparing to feed his stock and that said Cassie went out there at that time to milk; that she at once went into the seed house. Appellant immediately followed her and while she was therein he went into the seed house; that he, the witness, then approached the seed house in such a position and close enough that he could see both the parties therein; that he then saw appellant and said Cassie having sexual intercourse.
Appellant testified and both he and said Cassie denied that they had ever at any time or place had sexual intercourse.
Appellant made a motion for a continuance on account of the absence of his mother and his two married daughters, Mrs. Whitley and Mrs. Ford, his two daughters living near to and in his immediate vicinity. The State vigorously contested this motion. The bill and record shows that he was indicted January 19, 1915, arrested on the 22nd, made bond the same day and that day had subpoenas issued for said witnesses, which were executed, returnable January 25th, at which latter time the case was set for trial. It appears that for some reason the case was reset from the 25th to the 27th of January, at which latter date Mrs. Ford was in attendance but the other two were not; that the trial of the case was again postponed for some reason undisclosed until February 3rd; on that date it seems neither of these witnesses attended. The case was again postponed till February 5th, at which time neither of the witnesses were present, though they had been notified by phone on the 3rd to appear on the 5th. Appellant claimed that each of them was too unwell to attend the court.
The court, in allowing and approving the bill, fully explained and qualified it, which was accepted by appellant and he is bound thereby. *Page 503 In this explanation and qualification the trial judge showed that appellant's mother was an old woman eighty-six years old and was unable to walk without help; that she was both aged and infirm, of which appellant had absolute knowledge all the time, and her absence was no ground for continuance; that he could and should have taken her depositions, citing art. 818, C.C.P. We think there can be no doubt but that the court correctly overruled the application as to this witness. Kirkpatrick v. State,57 Tex. Crim. 17; Gregory v. State, 39 S.W. Rep., 572; Brittain v. State, 40 S.W. Rep., 297. The trial judge, in further explanation of the bill, clearly shows that what was expected to be testified by these witnesses was amply proved on the trial by other witnesses and was of matters which were not contested but conceded by the State. The bill and qualification of the judge are quite lengthy. We deem it unnecessary to copy either. We have carefully read them and the bill as qualified by the court clearly shows that no error was committed in overruling appellant's motion.
By appellant's bill No. 2 he complains that the State was permitted, on redirect examination of Cassie Dunn, to have her testify that she had a conversation with Dr. Bailey about writing to the child's father for money, his objections being that it was out of his hearing and presence, was hearsay, immaterial and irrelevant, he could not be bound thereby and it would tend to prejudice him before the jury. By his bill No. 7 he complains that while Dr. Bailey was testifying for the State he testified that when he first examined Cassie Dunn and told her she was pregnant that he told her a place where she could go and stay till the baby was born, and if the man who was responsible for her condition was able to pay for it she could go there and stay until the baby was born and they could have someone to adopt the baby and she could return to her home and that noboby would ever know anything about it; that it would take a good deal of money to do that, and that Cassie said she could get plenty of money. Appellant objected to this testimony for the same reasons as to that of Cassie in bill No. 2. The court explained each of these bills and shows that in effect this testimony of Cassie Dunn was brought out on his cross-examination of her and with reference to the writing of a $300 letter introduced in evidence. Besides, as to bill No. 7, the court further states that appellant did not object to Dr. Bailey stating the whole conversation he had with Cassie in explanation of his attitude and that he understood it was agreeable with appellant's attorney for the doctor to make said full statement and that the objection he made was not to its admissibility but went rather to the weight of the testimony. As explained by the judge neither of these bills shows any error.
Appellant has several bills of exceptions as to what the State proved was testified to by Cassie Dunn before the grand jury and the admission in evidence of her written sworn statement made before it, and of her other testimony and conduct before the grand jury. Said written statement is as follows: "Jan. 11, 1915. Miss Cassie Dunn being duly sworn testified: For about the past four years I have lived with Uncle *Page 504 Alfred Hollingsworth, near Turnersville, in Coryell County. When I went there to live his family consisted of himself, his two boys, Roy and Joe, and Grandmother H. lived there about half of the time. Roy and Joe both married about October, 1912, and moved to themselves. Me and Fanny lived there all the time. My brother William lived the most of his time with the other kinsfolk. I did the cooking, the milking and the general housework, and Fanny helped me. My baby was born October 29, 1914. I never had any intercourse with but one man in my life. The first time I ever had intercourse with this man was when I was about nineteen years old. I had intercourse several times. I never had any sweethearts. I told Uncle Alfred not to tell who it was. He knows who it is and he is the only one I ever told who it was and he will not tell. I won't tell who it was. Fanny wrote the letter you have shown me dated November 22, 1914. She wrote it for Uncle Alfred. Somebody else wrote the one to father, but Uncle Alfred signed it. That is his handwriting. I received that letter through the mails. I wrote the letter you have read me dated November 24th to my uncle. I knew I was doing wrong. I would not have yielded my virtue to any man that did not have my respect and confidence. I had intercourse with the man in different places, both night and day. Uncle Alfred knew when I left to go out West that I was pregnant, and I promised him not to tell it. He knows who it is. The things I said in that letter are true. Cassie Dunn." We will discuss the questions raised by these bills without taking them up separately. We have given above the substance in full of Cassie Dunn's testimony on direct examination when first introduced by the State. A careful and thorough consideration of these bills, as qualified by the court, and unquestionably sustained by the record, shows that the State, in no instance and at no time, attacked or attempted to attack the said testimony given on direct examination of said Cassie Dunn. Her said testimony, as stated above, tended, we think, with considerable force, circumstantially, to show appellant's guilt. There is no indication by her testimony on direct examination which shows or tends to show that she failed to remember or refused to testify, or failed to make the State's case. On the contrary, it was shown by her testimony on cross-examination at various times and in its various phases, that her testimony tended, and if believed, would have shown appellant's innocence of the crime with which he is charged. Under such circumstances there can be no question, both by the statute itself (C.C.P., art. 815) and a long and uniform line of decisions, that the State could impeach and attack her as to such testimony so given by her on cross-examination. The fact, if so, that the State's counsel knew or had information that this witness on cross-examination might give testimony materially injurious to the State's case would not and could not preclude the State from introducing her as its witness to prove as it did material facts against appellant by her. As to these material facts only, the State had her to testify as stated above. The State never at any time sought to impeach her or attack her testimony drawn out by its direct examination, *Page 505 but it was only that which was given by her at appellant's instance on cross-examination. Appellant seeks to apply that well established rule that it is error for the State to impeach its own witness where such witness merely fails to remember or refuses to testify or fails to make out the State's case, that a mere failure to make proof is no ground for impeaching such witness. Mr. Branch in his Criminal Law, section 866, lays down the above rule and cites many decisions of this court to that effect. Appellant cites only some of these cases cited by Mr. Branch. In other words, Mr. Branch cites a larger number of cases establishing this rule than does appellant herein, but they are all on the same line. The true rule applicable in this case is prescribed by our statute. It is (C.C.P., art. 815): "The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness." That is the rule and the only rule applicable in this case and was followed by the trial judge.
Appellant has several other bills, one of which was expressly refused by the court. Others so modified by the judge's qualification as to practically refuse them. And as so modified and qualified by the judge none of them present error. It is unnecessary to state them.
Appellant most vigorously attacked the testimony of said Oscar Easter as false, recently fabricated and corruptly induced by Henry Dollins and his brothers. Under the circumstances the court committed no error in permitting the two brothers of Henry Dollins, whom Cassie Dunn said was the father of her child, to testify to facts which circumstantially corroborated said Easter, over his objections, that their testimony was immaterial and irrelevant. McGrath v. State, 35 Tex.Crim. Rep.; Wade v. State, 37 Tex.Crim. Rep.; Hamblin v. State, 41 Tex. Crim. 135; Ball v. State, 44 Tex.Crim. Rep.; Lamb v. State, 55 Tex.Crim. Rep., and other cases collated in Branch's Crim. Law, sec. 46.
There is no question but that the other bills, as explained and qualified by the trial judge, show such a state of facts as that Cassie Dunn wrote to appellant a certain letter asking for $300. In fact, appellant acknowledged receipt of that letter but claimed to have lost it. That it was written by Cassie Dunn to him, received by him and lost or destroyed, was clearly established. So that not only did the State have the right to cross-examine him about it, but to introduce secondary evidence of its contents, and none of appellant's bills on that subject, as qualified, show any error.
Other bills, as qualified by the judge, clearly show that Cassie Dunn, soon after the birth of her child, wrote and had mailed to appellant a letter, a copy of which is as follows:
"I don't want to tell you a lie and I will not if the truth kills me. You know what you thought was the matter with me. It was so. It came the 29th of last month. It is a boy and all right. Has the bright eyes. I intend to bring it to Ft. Worth to one of the rescue *Page 506 homes. You know it was nobody else but you, but I will die before I will tell it. I have told Pa a story. Never told you any stories. You may think I am not as good as I was. I know I am to blame for it. So you see what I wanted with the money. It was for Bailey. He charged me fifteen dollars, so you see that would be enough for me to go to Ft. Worth. I can't help what Pa wrote down there. He has done everything he can to get me to tell him. I'll die first. I told you I would not tell and I have not yet; do as you like, cast me off if you want to but I'll never tell it. I spent my money for fruit and the rest for the boy some close for the boy and that is why I wanted you to come to meet me. I wanted you to see him. Don't let Fanny read this. (On the back of this page is the following): `A.M. Hollingsworth. Fanny don't you open this. Uncle Alfred, you open it yourself.'" He denied the receipt of this letter, but the State established such a state of facts as would justify the trial judge and the jury to believe that he did receive the letter and his denial of the receipt thereof was false. Cassie Dunn's father, without her knowledge, took a copy of the letter to appellant and the address thereon, and he and Dr. Bailey at the time examined and compared the original with the copy he retained. If the letter was received by appellant, which he denied, he had lost or destroyed it and failed to produce it on this trial. Under the circumstances the copy of the letter and asking the various witnesses thereabout was clearly admissible.
On the theory that he had demonstrated to the jury that said Easter's testimony was false and that where he placed himself he could not have seen the act of incestuous intercourse between appellant and Cassie Dunn, he asked a charge on circumstantial evidence which the court refused. We think it would have been improper for the court to have given a charge on any such assumption. We have studied the record and statement of facts in connection with this matter and we think the lower court would not have been justified in taking that question from the jury by giving such charge. Whether his testimony or whether the testimony of the witnesses from their standpoint testifying that he could not have seen what he testified he did see, was correct or incorrect, was a question for the jury.
Among other things the court charged the jury as follows:
"You are further instructed that if you find from the evidence that the witness Cassie Dunn in her testimony before the grand jury stated facts relating to the defendant's connection with the alleged crime of incest differently from the way she testified on the stand in the trial of this case, then you can only consider her testimony before the grand jury for the purpose of enabling you, if it does enable you, to do so, in passing upon the credibility of the witness Cassie Dunn, and of determining the weight you will give to her testimony. Her testimony, as she gave it upon the stand in this case, must be regarded as her evidence in your deliberations. Her statements made to the grand jury, if any different to what she testified, can not be considered as evidence of the defendant's guilt, but only for the purpose aforesaid of aiding *Page 507 you in determining the credibility of the said witness, if it does aid you in that regard.
"You are further instructed that if you do not believe from the evidence beyond a reasonable doubt, that the defendant received the letter, a copy of which has been exhibited in evidence before you, you will not consider the same for any purpose, except that of aiding you, if it does aid you, in determining the credibility of the witness Cassie Dunn, but you may consider it for that purpose only. However, if said letter was received by the defendant you will determine the weight you will give to the same under the instructions given you in the last paragraph of this charge." We think appellant's criticism of the last three lines of the second paragraph, claiming that it was on the weight of the evidence, is untenable. Taking the charge as a whole, it was proper for the court to charge as he did under the evidence. If the jury had not believed beyond a reasonable doubt that appellant received that letter — there was ample evidence for them to conclude he had, but as he denied it the question had to be submitted to the jury for a finding — then it was necessary for the court to tell them that they could not consider it at all. But, on the contrary, that if they believed he did receive it, then they could consider it only on the question of the credibility of Cassie Dunn, and under the circumstances, adding the latter clause to it and qualifying it with the first paragraph just above quoted, can not be construed to be on the weight of the testimony, but it was merely submitting the question to the jury. It is embraced within the rule about a confession which is denied by an accused. Besides, the court not only required the jury to believe affirmatively all the facts essential to convict appellant, otherwise to acquit him, but told them he was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt and in case they had such doubt to acquit him. And also that they were the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.
Appellant has two bills of exceptions complaining of the argument of the district attorney. As qualified by the judge it is shown that the argument objected to was provoked and in answer to that of appellant's attorney, and neither presents error. Sinclair v. State, 35 Tex.Crim. Rep.; Baker v. State, 4 Texas Crim. App., 223; Chalk v. State, 35 Tex.Crim. Rep.; Ray v. State, 35 Tex.Crim. Rep.; Campbell v. State,35 Tex. Crim. 160; Martin v. State, 41 Tex.Crim. Rep.; Pierson v. State, 21 Texas Crim. App., 14; Norris v. State,32 Tex. Crim. 172; Williams v. State, 24 Texas Crim. App., 32; Vann v. State, 48 Tex.Crim. Rep.; Hilcher v. State,60 Tex. Crim. 180, 131 S.W. Rep., 592; Washington v. State, 35 Tex.Crim. Rep.; Mooney v. State, 76 Tex. Crim. 539, 176 S.W. Rep., 52.
The only other question necessary to mention is appellant's motion for a new trial on the ground of newly discovered evidence. The court, as the record shows, heard evidence on this. The motion itself and *Page 508 the affidavits attempting to support it and the statement of facts thereon are quite lengthy. We have carefully studied the question and the record on the subject. We deem it unnecessary to go into any statement of it. Suffice it to say that we think the trial judge correctly held that the appellant was not entitled to a new trial on that ground and we think would not have been justified in granting a new trial.
The judgment is affirmed.
Affirmed.
ON REHEARING. January 12, 1916.