Appellant was convicted of rape, and his punishment assessed at death; hence this appeal.
Appellant moved for continuance because of the absence of his leading counsel, J.M. Eckford, Esq., who is shown to have been sick at the time of the trial. It is shown that appellant had other counsel, and the record does not disclose that he suffered any injury on account of the absence of his leading attorney. In this connection appellee also asked for continuance on account of the absence of said J.M. Eckford, Esq., who he alleged was a material witness for him, and who had been duly subpœnaed, and was unable to appear on account of sickness; that appellant expected to prove by said witness that Adolphus Thompson, a material witness for the State, told him that he had been frightened into making statements against defendant, and that said statements were untrue. What these statements were that Thompson disclosed to Eckford is not made to appear, and we are not authorized to supply this by intendment. Moreover, if it was intended here to insist on a continuance in order to impeach Thompson by Eckford, we would observe that as a general rule continuances are rarely granted for impeaching testimony.
Appellant claims that the case should be continued on account of the absence of Frank Morris, who had been subpœnaed, and from some cause unknown to defendant was not present. Defendant says he expected to prove by said witness that, at the time the alleged offense was committed, defendant was with him at a place a considerable distance from the place where the offense was committed and remained with him during the afternoon. This statement should have been made with more regard to particulars. Certainly appellant could inform his counsel at what particular place he was during that afternoon with the witness Morris, and it should have been shown in the application. Besides, the diligence for this witness was not sufficient.
A continuance was also craved because of the absence of Andrew Strelsick. By this witness appellant expected to prove that the family of "Victoria Nickle telephoned the officer that the offense was committed by the boy Haywood — the boy who rides the jack." The record does not disclose that any effort was made to shift this offense upon the boy Haywood; and, from the evidence, it would be immaterial even if the prosecutor, Victoria Nickle, had herself testified that she telephoned the officers that she suspected it was Haywood who had assaulted her.
Melvin Pitman was another absent witness. The application shows that it was expected to be proved by him that he saw defendant in company with Frank Morris at the time the offense was alleged to have been committed. This statement is equally as indefinite as that heretofore treated relating to the witness Morris. We do not think the court erred in overruling the motion for continuance.
On the trial appellant made a motion to quash the indictment, because he being a negro, in the formation and impanelment of the grand jury no negro was drawn — the negro race being discriminated against in the drawing. The motion further alleged that within the limits of Bexar *Page 403 County there are seven thousand qualified jurors, of which at least six or eight hundred are negroes, qualified to sit upon juries. A similar motion was made to quash the special venire. The court appears to have heard evidence on this subject, and to have overruled these motions, to which appellant excepted. The witnesses show there were ten or eleven thousand voters in Bexar County; that of these six or seven hundred are negroes; that no negroes were drawn on the grand jury, and within their knowledge none have ever been drawn; that some times negroes sat on petit juries. But it is nowhere shown by any of the witnesses how many of the alleged six or seven hundred negro voters in Bexar County were qualified voters. Besides being a voter, a person must be a freeholder or householder and able to read and write, and other qualifications not necessary to be mentioned. It may be that out of this population of six or seven hundred (about one-twelfth of the voters in the entire county) but few possessed the necessary qualifications to serve as grand or petit jurors. One of the commissioners who selected the jury was examined, and he states that all of the jury commissioners were white men, and that they had the tax rolls and city directory before them when they selected the grand and petit juries for the May term, 1902; that no negroes were drawn to serve as grand or petit jurymen; that the name of no negro was presented or drawn as a grand juryman for said term; if the name of a negro had been suggested he would have been placed on the grand jury. It thus appears, so far as the commissioners are concerned, that there was no intentional effort on their part to discriminate against the colored race in the formation of either grand or petit juries, and under the meager proof here offered we are not enabled to say that there was any discrimination against the negro race. On the contrary, it simply occurs that the matter was not brought up to be acted on; and if there were competent negro jurors in that county, which was not shown (although it may be presumed that out of such a number of voters there must have been some competent jurors), still, as the matter is presented, it does not appear that in the formation of either the grand or petit jury the negro race was discriminated against. The failure to select any negro was simply at most an oversight. The court did not err in refusing to quash the indictment or special venire.
During the trial appellant objected to the evidence of certain witnesses regarding tracks found at the scene of the alleged outrage that were similar to tracks made by appellant. The objection urged to this testimony is that said witnesses did not first qualify as experts or persons skilled or familiar with the subject testified about. We do not regard the evidence as to similarity of tracks a matter for expert testimony. A witness in order to identify tracks found at the scene of a transaction with those of an accused, must, before he can testify as to such similarity, show some knowledge in regard to the tracks testified about. He must have measured them or must be enabled to testify to some peculiarity between the tracks found at the scene, and those shown otherwise to have been the tracks made by appellant. This bill does not disclose the conditions *Page 404 under which the opinions or statements of the witnesses were given as to the similarity of tracks found at the scene of the outrage with those made by defendant. In order that the witnesses should have been disqualified to speak upon this matter, the bill should have shown that they made no measurement of the tracks, or that they were not familiar with any peculiarities in the tracks found upon the ground with those made by appellant. As presented by this record, the court did not err in admitting the testimony of the witnesses.
Appellant also complains that the court erred in failing to give an instruction to disregard the testimony of the State's witnesses Trainer and Mahula as to their opinion that the tracks made at the alleged place of the assault were made by the feet of defendant as measured by them at Atkins. When we recur to the testimony of these witnesses, as found in the statement of facts, we believe there was ample testimony to authorize the admission of the evidence of these witnesses as to the similarity of tracks found upon the ground with those of the appellant; and the court was not required to instruct the jury to disregard said tracks.
In motion for new trial, appellant contends that the court erred in permitting to be introduced in evidence against appellant, the record of the age of appellant, with other members of his father's family, found in a book at the home of appellant. In answer to this, it is sufficient to say that no bill of exceptions was reserved to this character of testimony. We make the same observations in regard to the objection urged in appellant's motion for new trial to three jurors who sat on the trial of the case. Appellant urges that said jurors were disqualified because they had not paid their poll tax. But this is neither shown by bill of exceptions or otherwise, save as one of the alleged grounds of the motion for new trial; consequently it can not be considered.
Appellant also craves a reversal because he says the verdict of the jury is not sustained by the evidence. The evidence that prosecutrix was outraged is of a positive character. The evidence as to the identity of appellant being the party who perpetrated the outrage is of a circumstantial character. However, we think it is ample and fully complies with the rule regarding circumstantial evidence; and, in our opinion, shows to a moral certainty, to the exclusion of any other reasonable hypothesis beyond any reasonable doubt, that appellant beforehand formed the design to perpetrate an outrage upon prosecutrix. He lived in the same neighborhood with her, and knew the route she took in going to and returning from school. He lay in wait for her, stripped of his clothes, and wearing a disguise over his face; he rushed upon the little girl, violently seized her; she was evidently overcome with terror, and was thus rendered powerless to resist his purpose. He threw her to the ground, accomplished his object, and then fled. His defense was alibi. The jury evidently did not regard his testimony, but believed the theory of the State; and we see nothing to authorize us to reverse the case. The judgment is accordingly affirmed.
Affirmed. *Page 405