This is an appeal from a conviction of rape with force committed by appellant upon his sixteen-year-old *Page 250 niece, with his punishment assessed at twelve years in the penitentiary.
He contends that the evidence is insufficient to sustain the conviction and that the court erred in refusing his special charge peremptorily requiring the jury to acquit him of said offense. All the evidence has been read and carefully studied. The evidence was sufficient to sustain the conviction. The substance of it will here be stated.
Appellant was a married man, had been married some years and lived at Lufkin with his wife and two children, one eight and the other three years old. He weighed about 200 pounds, was about five feet nine inches tall and was a strong, robust man. His wife for a long time was sickly from some female trouble. Early in October, 1916, he went from his home to the home of his niece's parents, who lived in Montgomery County, about five miles in the country from the railroad town of Splendora, and induced her parents to let their daughter, the assaulted girl, named Mollie Hough, return with him to his home for the purpose of her assisting his wife in doing the household work, cooking, washing, etc., because of the condition of his wife. The girl at that time was staying in Splendora attending school. At first her mother, his sister, refused to let her go on that account, but upon his stating to her that they had a good school at Lufkin which she could attend and that he would take good care of her and furnish her plenty of good school clothes, she consented that her daughter might go with him. He went back to Splendora, got the girl and took her to his home. She remained at his home about three weeks, worked at his home during that time and went to school there about two weeks. Trouble arose between her and his wife, and she thereupon determined to return home on the night of October 29th with his consent. After supper that night he took her from his home, first, to one of the railroad depots, then to a hotel where she left her grip, then to a drug store where he left her for a time, telling her that he would have to get some money for her with which to pay her railroad fare home. She remained about the drug store some time, until it closed up. She then saw him, and he told her to go to a certain restaurant and wait for him there, which she did. He went back there for her about 9 o'clock, then took her to another hotel in the town, reaching there between 9 and 10 o'clock. The lights of the hotel had been extinguished, and the proprietor, Mr. Fuller, and his family had gone to bed. Mr. Fuller's brother, it seems, was still up, and appellant applied for and procured a room upstairs. He and the girl were taken to the room, and he there gave Mr. Fuller's brother a five dollar bill to pay for the room. This was taken down to Mr. Fuller for change, which was procured, and taken back up by his brother to appellant. At this time appellant told him to call him at 5 o'clock. He put in no call for the girl, and neither did she, other than his call for 5 o'clock. This was in her presence and she heard it.
There was but one bed in the room. As soon as he got his change he closed and locked the door. *Page 251
The girl testified she was unwilling for him to stay in the room and asked him a time or two to go, but he refused. He told her that he was going to stay with her; that he didn't know when he would see her again; that he wasn't going to bother her; and she consented for him to stay. That she removed her shoes and top dress only and went to bed. That he removed his shoes and pants and lay down on the same bed. That she was unwilling for him to do that. He didn't tell her why he was lying down on the bed and she didn't know what he meant by it. Soon she went to sleep and was later awakened by his trying to feel of her, and when she awoke he had his hands on her private parts. She asked him to quit. He refused and kept on, going further and further, and she kept on begging him to quit and cried, and he wouldn't quit. She then detailed his conduct towards her. That she repeatedly got off of the bed to go to the door and escape, but he would immediately jump up, catch her and throw her back on the bed and get on top of her. That she wormed and screwed around and tried to work him off of her, tried to push him off with her feet and hands but couldn't do so. He was much stronger than she was. That he didn't tell her what he was trying to do, but she then knew from his actions that he was trying to have intercourse with her. That all this was going on for a long time from soon after they went up into the room and she lay down until towards 11 o'clock, when he finally overcame her and by force succeeded in having sexual intercourse with her. That she was crying and begging him all the time to desist. That she didn't holloa because he told her if she did he would have her put in jail and they would arrest her and put her in jail, and she was afraid to holloa. That she did everything she could trying to keep him from ravishing her. That finally she got away from him one time and got under the bed. That he caught her and pulled her out, put her on the bed again, got on her, forced her legs apart, tore her drawers open and accomplished the act. That when about to succeed, she told him she was going to holloa anyhow and started to do so, but he put his hand over her mouth, and she couldn't. That she exerted all the strength she had in trying to keep him off of her and tried to prevent his having intercourse with her. That she tried every way she could to prevent the act. That just after he had thus completed the act and accomplished his purpose, the proprietor came up and asked in substance what their conduct meant. That she was then crying and her uncle told her to hush and not say a word or the proprietor would take her and put her in jail and if she said anything would put her in jail. That Mr. Fuller then went downstairs. Her uncle jumped up, put on his pants, took his jumper, coat and shoes in his hands and fled. That she never consented to his said act with her but that it was without her consent, and she exerted all the strength and power she had to keep him from doing what he did.
Mr. Fuller, the proprietor, testified that soon after appellant procured said room and he and the girl went to it he went to sleep; that later his wife awakened him, and he heard the racket in the room occupied *Page 252 by appellant just above the one he and his wife occupied; that it was a constant rustle, lumbering about, heavy falling on the bed, getting off of the bed onto the floor, the girl crying. His testimony substantially corroborated that of the girl as to the struggling, her crying, etc. So far as he could tell it and judge it from the sounds which occurred and which he heard, Mr. Fuller said that when he could stand this no longer he went up, knocked on the door and asked: "What in the devil is going on here?" That everything became perfectly still, and he asked again and appellant said: "Not me." He asked if he was asleep and appellant replied, "Yes." And he asked if his light was burning, and he said, "No." He then told him: "This cutting up has been going on all night, and I have been putting up with it as long as I am going to." That he then returned downstairs, 'phoned for the sheriff and one of his deputies. That immediately upon his return downstairs appellant broke to run as if he was going down the back stairs, and he ran to the foot of that stairs to head him off. Thereupon, appellant ran back the other way, went out the front door running before he could stop him and that he thus ran away. That he had his shoes and some of his clothes on his arms. He had not put on his shoes nor all of his clothes. Much more testimony on these lines could be detailed, but it is unnecessary.
It is true that the girl herself, the officers and Mr. Fuller all testified that when they went up into the room after appellant had escaped and fled therefrom undressed, upon their inquiry of her, the girl told them her name was Lillian Jones; that it was her brother Charley Jones who had been in the room with her; that he had come from Tyler and met her there at the train and took her to this hotel and that it was him who was with her. That when she was asked if he had bedded up with her, she made no reply and stated that the cause of her crying was that she had just heard that her mother was very sick. That she told that she was fifteen years old when in fact she was sixteen. That the officers then took her to jail, and that after they reached there with her and she was inside, appellant came there, and when asked what he wanted told the officers he wanted to see the girl and take her out of there and that she was his niece. That the girl then broke down and told the officers she had not told them the truth about who it was with her and what had occurred but that it was appellant and not her brother who had been with her. The grand jury was then in session. She was taken before it the next morning, and at first testified before them she was fifteen years old; that appellant had not had sexual intercourse with her the night before but that one of her brothers some months before that had had sexual intercourse with her. Thereupon, she was told that they would take her affidavit, send it to the district attorney of Montgomery County, where she claimed that act had occurred, and have her brother prosecuted and sent to the penitentiary. She said she told this tale to the grand jury, believing that that would secure her release from jail. Upon further questioning, she then stated that *Page 253 her brother had at no time and place ever had sexual intercourse with her but appellant had the night before, and she then detailed to the grand jury the treatment of her by her uncle. She also swore before the grand jury that her given name was Louise and did not at first tell them that her true name was Mollie. She said that Louise was a nickname by which she was called.
The offense as applicable herein is: Rape is the carnal knowledge of a woman without her consent obtained by force. (Art. 1063, P.C.) The statute further is (art. 1064, P.C.) that this force "must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case."
The girl on this trial, which began December 4th and was concluded December 6th, either on her direct or cross-examination, or both, testified fully to all of what she had told Mr. Fuller and the officers when they took her to jail and her testimony first before the grand jury denying that appellant had ravished her, and every other fact tending to impeach her testimony, and the further fact that when on her cross-examination she was asked if she would permit her person to be examined to see if it evidenced any act of sexual intercourse she refused to be examined, was all before the jury and no doubt appellant's able attorneys made the most of all of this impeaching testimony of her before the jury that could have been made by anyone. Yet all of it and her manner of testifying, her demeanor, etc., was before the jury, and notwithstanding it all, they being the exclusive judges of the facts, credibility of the witnesses and the weight to be given thereto, believed her testimony against appellant and found him guilty of rape. The State's testimony, measured by the law, was sufficient to sustain the verdict. She was a young, inexperienced girl, under the care, custody and protection of her uncle. She had affection for him, confidence in him and trusted him. According to her testimony, supported by that of Mr. Fuller, her uncle had carnal knowledge of her without her consent and obtained it by force and without doubt such force as not only was reasonably supposed sufficient to overcome her resistance taking into consideration the relative strength of the parties and the other circumstances but did actually overcome her by such force.
On October 30th the grand jury returned an indictment against appellant in two counts, one for rape, the other for incest, alleging that said girl's name was Louise Hough. After the case had been set for trial later and then postponed twice at least on appellant's application under that indictment, when it was learned that her true name was Mollie Hough, the grand jury preferred another indictment on November 27th so averring her name. The two indictments were the same except as to her name.
When this cause was ultimately called for trial on December 4th and the trial then began, appellant made a motion for a continuance in addition to his previous motions for postponement or continuance in *Page 254 which he had succeeded on account of the absence of some nine witnesses. The State contested this application, showing that two of these witnesses were fugitives from justice and that several of the others were expected to testify solely to his good reputation as a law-abiding etc., man. The testimony of all the others, including his wife, would have been solely for the purpose of impeaching said girl.
It has always been held by this court that a continuance will not be granted for witnesses to prove an appellant's good character. Parks v. State, 35 Tex.Crim. Rep.; Wright v. State, 37 Tex.Crim. Rep.; Franklin v. State,34 Tex. Crim. 203; Miller v. State, 32 Tex.Crim. Rep.; Duncan v. State, 30 Texas Crim. App., 1; Benson v. State,38 Tex. Crim. 487; White's Ann. C.C.P., sec. 611. It is unnecessary to cite the many other cases.
It is also well settled that a continuance will not be granted on account of the absence of witnesses whose testimony would only be for impeachment of a State's witness. Butts v. State,35 Tex. Crim. 364; Franklin v. State, 34 Tex.Crim. Rep.; Fulton v. State, 43 S.W. Rep., 1010; Garrett v. State,37 Tex. Crim. 198; Rogers v. State, 36 Tex.Crim. Rep.; White's Ann. C.C.P., sec. 612. A great many other authorities could be cited.
The court qualified appellant's bill to the overruling of his motion for a continuance as follows: "That Mr. and Mrs. Toliver and Clark Edwards could not be found, and further that Mollie Hough testified on the witness stand that she had at all times denied having anything to do with defendant, and she admitted everything that defendant set up that he expected to prove by said three witnesses; further, the defense had some fifty to seventy-five witnesses in attendance upon court, most of said witnesses being out of county witnesses and no witnesses at all were introduced by defendant. Further qualified that the witness Hugo Carter reached the court before the case was finished and could have been placed on the witness stand and the State offered to cross depositions to the wife of defendant. This case had been called two or three times before the trial started. The old indictment and the new one were for the same transaction." The court's action in this matter was not error.
In his motion for a new trial he alleged misconduct by the jury in that some one or more of them told the others that they knew the reputation of said witness Fuller and that it was good. And also that they discussed the failure of the appellant to testify. This was denied and contested by the State. The court heard the jurors testify when acting on the motion. It is unnecessary to recite the testimony by each of them. The appellant introduced three of them, and from their testimony, if believed, and there had been no other testimony contradicting theirs, it may have been sufficient for the court to have sustained his motion on these grounds, but the State then introduced the other jurors, some, if not all of them testified that no such things occurred. In the majority opinion some of this testimony, which is *Page 255 most favorable to appellant, is stated, but that of the same jurors favorable to the State, as well as that of the other jurors, is not given. The true rule is stated in Lamb v. State, 75 Tex.Crim. Rep..
The court in qualifying his bill on this subject said: "After hearing the evidence, I concluded that the jury did not discuss the failure of the defendant to testify, but that defendant did not offer any evidence to contradict the witnesses, and that the court charged the jury not to consider the matter of the defendant not testifying, and when the jury read this part of the charge it was stated by the jury that the jury must not consider such failure of defendant to testify. As to the witness Fuller's reputation, the evidence taken on the motion for a new trial is referred to and I concluded that the verdict of the jury was not affected by same."
Clearly the judge's conclusions were amply supported by the testimony of the jury. Their credibility was a matter that he not only had the right, but it was his duty, to pass upon. He did not have to believe the testimony of those who would have supported appellant's contention when others, and more of them, testified in effect to the reverse. This court, and no judge of it, can passibly be as well qualified to determine the real facts and who was telling the truth as the judge of the trial court. His conclusion on disputed facts ought to be and is conclusive on this court.
Appellant has several bills showing that he objected to certain questions asked different witnesses, claiming that such questions were leading. As a sample, this is one of them to said witness Fuller: "Q. `Will ask you whether or not at any time just shortly before you went and knocked on the door you heard a smothering noise up there?' (The door knocked upon was referred to as the one to the room in which the prosecutrix and defendant were at the time of the alleged commission of the offense) to which the witness answered: `Yes, sir; crying.'" Clearly this question was not leading. It did not suggest the answer, and besides, even if it had, no prejudice is shown by asking the question under the circumstances of this case. 1 Branch's Ann. P.C., p. 90. Some of the bills on this subject were qualified by the judge; others were not. Taking the several bills, neither those that were qualified by the court nor those which were not show any such error as would authorize or justify a reversal of this case.
Appellant's bill complaining that the court refused to permit him to ask said girl a certain question as qualified by the judge shows no error.
This case without any doubt shows that appellant by force raped his own sixteen-year-old niece while she was peculiarly and specially under his care, custody, control and influence. The reversal of this case will no doubt result in his going "scott free" of any conviction. There is no reversible error. He had a fair and impartial trial, and his conviction should stand. I dissent. *Page 256