Appellant presents but one question on rehearing. He claims that the court below erred in admitting the testimony of Mrs. Kirby to the effect that before she laid the facts of this case before the prosecuting officers of Tarrant County, at the instance and direction of her husband, she laid the facts before her grandparents at Weatherford and that they advised her, upon her return to Fort Worth, in effect to lay the matter before the prosecuting officers, which she did. He also complains that the court below erred in permitting Mr. Wilson, the assistant county attorney of Tarrant County, in effect, to testify that before Daisy Moore, the prosecuting witness, had an opportunity to be corrupted, or came under the influence of Mr. and Mrs. Kirby she made a statement to him of the facts of this case, or what her testimony would be; and in permitting Mr. Wilson, the assistant county attorney, to also testify that Mrs. Kirby, on Sunday before the prosecution was instituted the next day, laid the facts of the case before him, and that the prosecuting officers instituted this prosecution and that neither of the prosecuting witnesses, Daisy Moore, nor the Kirbys, did so. And that he testified further that Mrs. Kirby, when he first saw her and she laid the facts before him, then told him *Page 575 what she testified on this trial. And that this court, in the original opinion, erred in holding that the lower court committed no error in these respects. We have not undertaken to give above, in detail, appellant's contentions. We have merely stated the matter in a general way. In the following discussion we may state the matters more in detail.
Appellant by his able and eminent attorneys, in a very lengthy and vigorous brief, urges his contentions with great force, and has cited many cases and quoted from many of them. We have read and studied his brief and the authorities he cites, as we believe, thoroughly, and from his brief and authorities, and many others, which we have examined in connection with them, have reached the conclusion, which is entirely satisfactory to us, that the lower court did not err in admitting the testimony complained of and that this court reached the correct conclusion so holding in the original opinion.
With the view of discussing the questions we will restate the case and the evidence to some extent, in addition to what we did in the original opinion, but in connection therewith.
As stated by appellant, Daisy Moore and Mrs. Kirby, her sister, and Mr. Kirby, were very material witnesses for the State. In fact, the State's case depended upon their testimony. If the jury should believe them it would result, as it did, in appellant's conviction. Knowing this, appellant, from the very first, began an attack specifically on these witnesses, and each of them, to show that their testimony was false, of recent fabrication and was given by each of them corruptly at the instance of the Kirbys, and especially of Mr. Kirby, because of his intense hostility to appellant, his hatred of him and his oft repeated threats to revenge himself upon him. There is no question but that this record, and the bills themselves, show all this, and, in fact, his whole defense was based upon his said attack of said witnesses.
Mrs. Fondren was the daughter of Mr. and Mrs. J.R. Browning. Appellant was their nephew. Mr. and Mrs. Fondren were, therefore, cousins. She was a young widow and he a young widower when they married some years before this prosecution. At the time of their marriage Mrs. Fondren had some five children by her former husband, Moore. Pansy and Daisy were two of her daughters. Pansy was some two years older than Daisy and some seven years before this prosecution Pansy had married George Kirby. Likewise, appellant had several children when he married Mrs. Fondren. The two sets of children lived with their parents after their marriage. Mr. and Mrs. Fondren had several young children born to them after their marriage.
Daisy Moore testified that while she was a young girl, about nine or ten years of age, after her mother married Fondren, and when he could do so without being seen, Fondren began a course of treatment of her private parts with his finger and thus developed her private parts so that later he could effect an entrance with his private parts; that he kept up this course of treatment for about one year, then did secure an entrance of his private parts into hers; that he then kept up sexual intercourse with her from time to time until in October, 1912, when *Page 576 he impregnated her and got her in family way; that after getting her in this fix he became very uneasy, and attempted, in various ways, by having her take drugs and he used things in her private parts to bring about an abortion. This failing, and her person beginning to show pregnancy, he, in effect, advised, encouraged, planned and commanded Mrs. Fondren to take her to Fort Worth to some doctor and have an abortion produced on her; that for this purpose he took her and her mother from their home some eight or ten miles from Weatherford, in Parker County, to Weatherford to send them by rail to Fort Worth to have the operation performed, telling his wife at the time to go till she had the operation performed and pay whatever was necessary to procure it; for her to draw the check on his local bank where he lived and of which he was an officer and he would have the check paid; that he could not himself in advance draw the check for he did not know what she would have to pay; that in obedience to his instructions and requirements her mother took her to Fort Worth and had Dr. Link, in connection with herself, to produce the abortion on her; that Mrs. Fondren, in payment, did draw a check on said bank in accordance with his instructions, for $200 and upon her return she so informed him; he protested that the amount was too large, that the doctor had robbed her, but gave instructions to the bank officer to pay the check, which was done.
Among other things, Daisy testified that just shortly before appellant had his wife take her to Fort Worth and have the abortion committed, she told her mother of her condition and that appellant was the author thereof and of her shame, and that she had frequently before then told her mother of appellant's treatment of her from the time she was quite a young girl. Appellant denied the girl's whole testimony along these lines, and protested his innocence.
He had his wife to testify and deny that Daisy had ever told her of appellant's mistreatment of her and that just a few days before she took her to Fort Worth that Daisy had told her that she had had frequent acts of intercourse with the young men with whom she went, and, in effect, that some one of them was the author of her shame and that appellant was not, and had never had anything to do with her.
Daisy and Mrs. Kirby both swore that when Mrs. Fondren, their mother, went to Dr. Link with Daisy and hired him to produce the abortion that she then, in their presence, told Link, in effect, that Daisy was pregnant by some boy in their community. Link first operated on Daisy on the evening of the last Tuesday in April, 1912. He and her mother then sent her to stay at Mrs. Chancelor's, a nurse. She was brought back by the nurse to the doctor, the next day, Wednesday, and he again operated on her. The nurse took her back to her house and that night she gave birth to the fetus. Mrs. Fondren saw her no more after Link performed the first operation on her until after this prosecution was begun. She returned home Wednesday. Appellant met her in Weatherford; she then told him about the check, and, as they claimed, nothing about an abortion, but that she had left Daisy at *Page 577 Fort Worth to be treated by the doctor for some length of time for some other affliction. Appellant left his home, eight or ten miles from Weatherford, the next day, Thursday, took the train at Weatherford for Fort Worth, thirty-two miles by rail, went to the Kirbys and stayed all night. He claimed that he went to Fort Worth on this occasion to collect $2.50 on a note owed to him by someone living in Fort Worth! However, according to his own testimony, he promptly called upon Daisy at Mrs. Chancelor's the next morning. Daisy testified that he so called upon her and he asked her, "Did it hurt much, Daisy?" She replied, "Yes, it liked to have killed me." He said, "Daisy, are you going to kiss me?" She replied, "No, I ain't going to kiss you," and did not. He said, "I am awful afraid people are going to find this out." He further said to her, "Daisy, I want you to go back as soon as you can and hurry up and get well." And that he then said to Mrs. Chancelor, "I want to take her away as soon as I can; I am awful afraid people are going to find out something if I do not move her away from here." And then, after Mrs. Chancelor left the room, he said to her, "Daisy, don't you give it away, now." And he also said something to her to the effect that it had cost him a whole lot.
Mrs. Kirby never saw Daisy from the time when her mother first made the arrangement with Link to perform the operation upon her until this Friday morning after Fondren had just visited Daisy, shown above. Mrs. Kirby said she met appellant on the streets in Fort Worth just after his visit to Daisy, and she testified: "I just met him and he said, `Pansy, I have been over to see Daisy, and she is getting along fine; everything is all over with; it happened last night and she is getting along fine and I want to carry her home before Sunday, but I don't guess I can. I want to carry her back; I am afraid people will think something if she stays too long. She is getting along fine.' I replied to him, `You are not going to take her back there, are you?' and he said, `Yes, I am.' I replied, `You are not,' and he said, `That will never do, I will have to take her back,' and I said, `You will not take her back and I will see you don't.' And he said, yes, he would take her back, and I told him, `I will see you don't carry her back there,' and I said, `You will not carry her back there and live with mamma and live with her and use her as you please and live with mamma too — that is a pretty come off there, living with them both and keeping her there and using her as you please,' and he said, `That is none of your darned business,' and I told him, `You are not going to carry her back there and have this happen again?' He said, `It ain't none of your darned business how many times it happens, I paid for it, and it is nothing out of your pocket,' and he said, `I have to catch that ten o'clock train.'" Daisy further testified that after he returned home on this occasion he telephoned to Mrs. Chancelor trying to make arrangements for her to send Daisy home right away.
The State in opening its case, introduced and had Daisy testify practically fully to make out the case. It then introduced only Mr. Browning *Page 578 to show the relationship of the parties, and to corroborate Daisy on that point, and Mr. Wiggins, the banker, to show that appellant gave him instructions to pay said check and that he paid it. The State did not introduce either Mr. or Mrs. Kirby in opening its case. They were introduced in rebuttal after appellant had introduced his witnesses attempting to establish his defense. When Daisy was turned over to him to cross he went into a most severe and extensive cross-examination, clearly thereby seeking to show that her testimony implicating him was utterly false; that it was of very recent fabrication; that it was induced and inspired by Kirby and his wife from their corrupt motive, hostility to and hatred of him, and their, or Mr. Kirby's, threats against him of vengeance. Among other things they had her testify that she went from Mrs. Chancelor's late Sunday evening after appellant had visited her the Friday before and had attempted to make arrangements with Mrs. Chancelor to ship her home the Saturday before, and that she had remained continuously since then at the Kirbys; that she wanted and intended to go home, but the Kirbys would not let her; they asked her if Mrs. Kirby had not talked to her a great deal about the evidence after she went to them. She admitted that Mrs. Kirby had talked to her, but told her at all times, "Tell the truth, Daisy, the whole truth; just tell the truth all the time." She was then asked if she did not know that Mrs. Kirby and her husband were very bitter against Fondren and that they didn't like him; and if Mrs. Kirby didn't run away at the time she married Kirby against the opposition of both Mr. and Mrs. Fondren; if she didn't know that Fondren and Kirby had very serious trouble at Fondren's home about the time Mr. and Mrs. Kirby married and when they at first separated. They had her testify that Fondren did not want them to go back together; that he talked around and talked to Mrs. Kirby to induce her not to live with Kirby; that they did separate and that Mrs. Kirby went back and stayed at Fondren's during their separation. He even had her testify that the Kirbys bought her a pair of red slippers while she was at their home just after this abortion; that when Fondren was arrested and brought to Fort Worth her mother went there with him and that her mother went out to the Kirbys where she was to induce her to return home with her, her mother telling her that if she did not go back with them, that she herself would have to go to jail, and that at first when her mother tried to get her to go back she refused, but when her mother told her if she did not go back with her that they would put her in jail, she then agreed to go back with them under the belief and representation by her mother that Fondren was then in jail; that when her mother first went out there that night she asked, "What have you told, girls; don't tell it; just stand by us, your pa will get you a new hat, Pansy; stand by us. Daisy, if you don't go back with me I will have to go to jail tonight; your pa is in jail, he is arrested and put in jail and I will have to go, too."
In addition, as soon as the appellant began to introduce his evidence, his main, if not his sole defense, as stated above, was an attack upon the Kirbys and Daisy. He didn't wait till the Kirbys or either of them *Page 579 were introduced by the State and testified. His attack on them was in advance. Appellant himself testified that he and his wife both objected to Pansy marrying Kirby; that they had to run away to do so; that after their marriage they separated; in a few months Pansy returned to their home, where she stayed a few months; that Kirby repeatedly sought a reconciliation with her, and the effect of his and Mrs. Fondren's testimony is, as well as Daisy's, that they opposed a reconciliation; and that at last, when Kirby did come to his house, seeking an interview with his wife for that purpose, he approached Mr. and Mrs. Fondren and told them the purpose of his visit — his wife was at the time in the field picking cotton; that appellant and his wife, in effect, first refused to let him see his wife, but finally did do so, appellant accompanying him at the time with a Winchester rifle to protect Pansy against him; that as soon as appellant had an interview with his wife, a reconciliation was at once brought about and he took her back, and they have continuously since then lived together as husband and wife and have had two children. He further testified that in the interview he had with Daisy on the Friday morning while she was at Mrs. Chancelor's, he, in effect, did not have the conversation and make the statements Daisy said he did. "I never heard that statement until it was made here yesterday and never did hear it until she made it here yesterday." That he and Kirby were not the best of friends at that time, and he specifically testified, "I kind of think Kirby put Daisy Moore up to swearing this lie on me. I kind of think she was put up to it." He further testified that on Monday when he was arrested and taken to Fort Worth, his wife accompanied him; that his wife, in effect, did not go to the courthouse with him when he made bond, but instead she went out to the Kirbys to get Daisy, and that when she met him to return home she told him Daisy was up there dressed and they (the Kirbys) would not let her come home; that Daisy was just bawling and crying and wanting to go home; that he told his wife, "We will go after her then," and that he got an automobile and he and his wife did go out to the Kirbys after her; that he told his wife, "We will bring her back"; that they went to the Kirbys in the automobile to get her and take her home, but that Kirby wouldn't let them take her. He denied that he stated to Kirby at this time, "George, let her come, I will help you." Kirby swore he did tell him that at that time.
In addition, he introduced Mr. Clark and had him testify that he knew Kirby and his wife at the time and before they married, and when they separated at one time; that he formerly lived near where appellant had lived and that he, the witness, was justice of the peace there and that about four years before this trial when he was at a blacksmith shop at Adell, he heard Kirby make this statement concerning appellant, "I heard him say that he would get even with Fondren about the trouble with his wife, if it took him forty years, and a good deal of talk along that line — that he would get even with him if it took forty years."
He also introduced Mr. Jordan and had him testify that in 1908, when *Page 580 he was at George Kirby's home, he heard Kirby say that he (Fondren) had objected to him marrying his stepdaughter at the time; that he would get even with him some time or another.
He also introduced Mr. Mooney and had him swear that he knew Kirby and his wife Pansy and he remembered the occasion of their marriage; that he saw Kirby that day or soon after and heard him make this statement about appellant: "I will fix the God damn son-of-a-bitch if it takes me a thousand years, and, by God, I will catch him napping." The witness further said that he knew of his own knowledge that Fondren had objected to the marriage of the Kirbys and that they had some trouble about it; that Kirby was at the time pretty hot about the way the Fondrens had treated him.
So that it is clear and certain from this record that appellant's main defense was to break down the State's case made by Daisy Moore and the Kirbys, and that he vigorously and viciously attacked the testimony of each of these witnesses directly and positively, as utterly false, as recently fabricated, as inspired, induced, and brought about by the hatred and threat of revenge by the Kirbys against him, and that they themselves instigated and instituted this prosecution against him.
Under the circumstances we think there can be no doubt but that the State had the right and it was its duty to sustain the testimony of each of said witnesses in the manner and to the extent that it did to which appellant objects, and that the court committed no error in permitting this to be done.
In Jones v. State, 38 Tex.Crim. Rep., wherein Jones was prosecuted for murder for killing Veal, Jones' defense was that Veal had raped Mrs. Jones years before; that she had told Jones of this years after their marriage. This court, through Judge Davidson, in that case in a very able and exhaustive opinion, said:
"The statement of facts presents but one issue, and that is, whether appellant was guilty of murder in killing W.G. Veal, or whether he was guilty of manslaughter. If the jury believed the testimony of Mrs. Jones and appellant, the theory of appellant that it was nothing greater than manslaughter is clearly presented. If the jury did not believe the testimony of appellant and Mrs. Jones, then manslaughter, so far as the jury is concerned, is not in the case. The State's theory is that the killing was not prompted by a passion aroused by this misconduct of Veal towards Mrs. Jones (wife of appellant), and that her testimony was manufactured to aid her husband in his defense. Every particle of testimony introduced by the State is for the purpose of making a case in opposition to the truth of the testimony of Mrs. Jones and defendant. Now, the rule of law is that, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, the party introducing the witness can prove that before the motive existed (the motive in this case being to save the life or liberty of her husband), the witness made the same statement as that sworn to. To state the proposition in another form: if the opposing case is to the *Page 581 effect that the witness had a corrupt motive in swearing to certain facts, or that the witness recently fabricated the testimony for a purpose (in this case the motive being to prevent the conviction of appellant, and that, therefore, this testimony was manufactured after the death of Veal), the party introducing the witness (being the appellant in this case) can show that before the deceased (Veal) was killed the witness (Mrs. Jones) told the same story which she swears to upon the trial. By such proof, the charge that it was fabricated, or prompted by an improper motive, is completely met and destroyed, if believed by the jury. The authorities are divided as to whether a witness can be supported because the adversary has shown that he made conflicting statements about the fact. We hold that this can be done. This, however, is a doubtful question when tested by the authorities. All the authorities agree where the attack is made that the witness is prompted by improper motives, or has recently fabricated the story, that under either of these contingencies the party introducing his witness can prove his witness stated the same facts prior to the time when the motive could have existed, or prior to the occasion or circumstance prompting the manufacturing of the testimony. We have repeatedly written upon this subject, laying down substantially the same rules that we here state, and we deem it unnecessary to even cite the cases. In support of this last proposition we cite 1 Whart. on Ev., 2 ed., art. 570. We also call attention to the long list of cases cited by Mr. Wharton in note 2 to this article. Apply these principles to this case: When the testimony in the case had been concluded there was no evidence before the jury that Mrs. Jones or appellant had ever alluded to the outrages committed on Mrs. Jones. The inference is cogent indeed that it was fabricated to save the life or liberty of appellant. It would have been perfectly natural and reasonable for the jury to have inferred that she had manufactured her testimony because she wanted to save her husband. But suppose, in addition to her testimony (it being of a doubtful character standing alone), the evidence of Kendall had been received, would any man have entertained the same doubts about its truth as if her testimony had been without support? Law should be common sense, and there is no man but what would have much more readily believed her testimony if they had known that she told the same story before the death of Veal as that which she swears to on the trial. We are of opinion that this testimony was admissible for the purpose of supporting Mrs. Jones, and for the purpose of showing that Jones believed her statements. Again, in another view, this testimony was admissible as independent evidence, for the purpose of showing that the insulting conduct of Veal towards Mrs. Jones had been communicated to Jones prior to the homicide. It is true that Mrs. Jones swore directly that she communicated the insulting conduct of Veal to her husband, but the defendant was not circumscribed by making such proof by his wife. As original testimony, it was entirely competent for the defendant to have introduced Kendall to show that Mrs. Jones communicated the conduct of Veal to him, and that he in turn told it to the defendant prior to the homicide." This *Page 582 was stated in the original opinion of the court herein when the case was reversed and remanded. The State came back in its motion for rehearing attacking most vigorously the opinion of the court on this point. The court again, through Judge Davidson, in an opinion on rehearing, took up the question and said:
"The Assistant Attorney General cites us to Mr. Wharton and authorities which deny the correctness of a proposition that a witness can be supported when thus attacked. We have written a number of opinions in which we called attention to the fact that Mr. Wharton and a great many cases question or deny the correctness of the proposition. We have not invented this rule for this case, but have applied it to every case in which the question has arisen. The original opinion was based upon this proposition, found in Mr. Wharton's work on Evidence (section 570, and the same action relied on by the Assistant Attorney General), and the rule is not questioned by any authority, towit: `On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted. It has consequently been ruled that statements made by a witness corroborating his evidence upon the trial, such statements being uttered soon after the transaction in litigation, and at a time when the witness could not have been subject to any disturbing influences, are competent when proof has been offered to impeach him, by showing that he had recently fabricated the narrative, or that he testified corruptly.' In support of this proposition, Mr. Wharton cites a great number of authorities, common law as well as from the different States of this Union. And in the note to said text we find this: `Russell (volume 3, page 593) holds that the better opinion seems to be that such evidence is not admissible, except in cases where the counsel on the other side impute a design to misrepresent, from some motive of interest or relationship.' And this note is supported by a great number of authorities, all of which are English cases, including as well Phillips, Starkie, and Hawkins. These excerpts from Mr. Wharton will be found in the very same section quoted and relied upon by the Assistant Attorney General. If we had based our ruling upon the fact that Mrs. Jones was supported, because proof had been made tending to show that she had made contradictory statements, the excerpt from Mr. Wharton contained in the motion of the Assistant Attorney General would have had some explanation. But, as before stated, the appellate courts of this State have held, in an unbroken line of decisions, that, where a witness is attacked by showing contradictory statements, the witness can be supported. We are not called upon to go back on that rule, for, as above stated, the opinion is not upon that subject. Now, will anyone deny but what the State's case — the opposing case — most powerfully suggests that Mrs. Jones had fabricated her testimony to save her husband's life? There was the motive, the cause assigned, and no doubt argued with great force and effect before the jury. To meet this appellant had the right to show that his wife did *Page 583 not fabricate this testimony to save her husband; that she told the same story before the killing of Veal. For the first time in this State, so far as we know, the motion for rehearing in this case questions the rule, where when a witness is attacked by showing that he testified corruptly, or had recently fabricated his testimony for a purpose, he could be supported by proof that he (witness) made the same statements before the motive could have existed, and that it was not fabricated, because he had told the same story before. In this case the motive on the part of Mrs. Jones was to save the life of her husband, if her testimony was false. This was the opposing case of the State on the trial."
To the same effect is English v. State, 34 Tex. Crim. 190, wherein Judge Hurt for the court said: "Appellant complains of testimony to the effect that the witness gave on the night of the homicide a similar version of the facts attending same as sworn to by him on the trial. Appellant, before this, had made an attack upon him, by trying to prove that his evidence was recently fabricated. Under this state of case the State had the right to sustain her witness by proving that just after the homicide her witness made the same statement in substance as that sworn to on the trial, and by this means disprove that his testimony was recently fabricated."
To the same effect Judge Hurt for the court, in Mitchell v. State, 36 Tex.Crim. Rep., said: "Before introducing him as a witness in this case a nolle prosequi was entered. Upon cross-examination appellant's counsel asked him if his case had not been nol prossed. He answered that it was. This question and answer were over the objection of appellant, the objection being that you could not thus support a witness. The law is with the action of the court below. Evidently, when the counsel for the appellant proved that the prosecution had been nol prossed as to Neal, the purpose was to impeach him by showing that that was the cause of his testifying as he did, and that his testimony was therefore corrupt, and perhaps induced by a bargain between him and the State. Under this State of case the party introducing him could show that he made the same statement before his case was dismissed. This is not an open question."
In Reddick v. State, 35 Tex.Crim. Rep., Judge Hart, for the court, said: "If the defendant attempts to show that improper influences have been brought to bear upon the prosecutrix, or any other witness, to accuse the defendant of the crime, the State would have the right to prove that, before these influences were applied, she told the same tale as she swears to now upon the trial."
In Akin v. State, 56 Tex.Crim. Rep., this court said: "If the State should claim and contend, as is here done, that the testimony of Mrs. Akin, as to deceased's insults to her, was a fabrication and pursues the same course of attack on her testimony as is here shown, we think it admissible for appellant to show, in corroboration of the testimony of his wife, that she had made, before the homicide, statements to her sister in keeping and harmony with the disclosures claimed to have been made by her to her husband. This doctrine, we think, is fully supported *Page 584 by the decisions of this court in Jones v. State, 38 Tex. Crim. 87, 40 S.W. Rep., 807, and State v. Buffington, 4 L.R.A. (N.S.), 154; see notes, page 164."
While quite lengthy, we will now copy what is shown by the bills of exceptions to the testimony complained of. The first shows this:
"Mr. Wilson (of counsel for the State): Q. When you got over there and told Mr. Browning what had happened, did he give you advice about the matter? A. Yes, sir. Mr. Shadle (of counsel for defendant): We object to that, about any advice he gave her up there about the matter; it is not binding upon the defendant and is wholly immaterial. Mr. Wilson: We think it is right for the State to show on whose advice she acted. Mr. Baskin (of counsel for defendant): We except; hearsay, and a matter that occurred outside of the presence of this defendant and he is not bound by it. Mr. Wilson: It is not offered as any evidence tending to connect the defendant with the commission of this crime. Mr. Baskin: We still object and except. . . . Q. When you reported this matter to him — I won't ask you in detail, but did you tell him what you had heard and seen over here? A. Tell grandpa? Q. Yes, ma'am. A. Yes, sir. Mr. Shadle: Our objection and exception goes to all of that. Mr. Wilson: Q. What did he advise you? A. He told me and my grandma both — Q. What did they advise you? A. They told me, `You go back home, and in the morning you call up the prosecuting attorney's office,' and I did. . . . Q. Who did he say get? A. He said get Mr. Wilson, Jim Wilson, and he said, `He is assistant prosecuting attorney there,' and I done that next morning like they told me to. And he said, `You tell them all about what happened, tell them to come to your house, 1211 Gould Avenue, tell them everything when they get there.' Q. Did you know I lived over here then? A. No, sir, I did not know you liked in Fort Worth. Q. Did you ask — did you act on his advice in the matter? A. Yes, sir. Q. Did you phone me? A. Yes, sir. Q. Did you talk to anyone in the county attorney's office before you talked to me? A. I talked to Mr. Baskin (John Baskin, county attorney) at his house. Q. What did you ask him? A. I asked him your number. Mr. Baskin: Same objection. Mr. Wilson: We understand you are taking a bill to all this evidence? The court: Yes, sir, give you a bill to all of it. Mr. Baskin: Note our exception. Mr. Wilson: Did you phone? A. I could not find your number in the book and I called Mr. Baskin and he give me your number. Q. Did you phone me and talk to me? A. Yes, sir; I done like they told me, I told them, `This is Pansy Kirby, J.R. Browning's granddaughter,' and told you I wanted you to come to my house, 1211 Gould Avenue. Q. Did you tell me what it was about? A. I told you I had some important news to tell you — I did not tell you what it was. Q. When I got there it was on Sunday? A. Yes, sir. Q. Did you tell me what you had testified to here? A. Yes, sir." The court qualified this bill as follows:
"With the explanation that the defendant had introduced testimony for the purpose of creating in the minds of the jurors the belief or suspicion *Page 585 that Mr. and Mrs. Kirby had put the prosecuting witness up to laying the blame for her downfall on the defendant, and the court permitted the testimony complained of to be introduced in order that the jury might see what connection the Kirbys had with the prosecution."
Appellant accepted this bill thus qualified and is bound thereby. The record unquestionably sustains the court's qualification.
The other bill shows this: That the assistant county attorney, Mr. Wilson, on the State's behalf, took the stand, when this occurred:
"Mr. John Baskin (county attorney): Q. Now, Mr. Wilson, the question these gentlemen put to Mr. Kirby and Mrs. Kirby as to how this statement was taken of Daisy Moore, and how this prosecution came about — you are familiar with it — without asking me any questions, detail to this jury how it came about. Mr. Albert Baskin: We object to all that as immaterial and hearsay matters that occurred outside of the presence of the defendant; secondary evidence on the proposition, they have introduced the best evidence — it would not be the best evidence, it is hearsay, and it was out of the presence of this defendant and he can not be bound by it. The court: Overrule the objection. Mr. Baskin: Note our exception. Mr. Wilson (testifying): Mrs. _____, some lady, I do not know who it was at the time, phoned me one Sunday morning, the Sunday morning this girl made this statement, I should judge about eight o'clock, some time along there, I can not be certain, anyhow, I told her I would come — I did not really catch the name, but I did catch the number, and told me it was important, so having the number I went over there and finally found her, and then she told who they were — I did catch it was the granddaughter of J.R. Browning over there, people I know, so Mrs. Kirby told me what she had heard between Mrs. Fondren and the doctor, just about as related here to the jury and also the conversation she related occurring between herself and Mr. Fondren on that Friday. I did not remain there very long over an hour or so, about noon — she gave me the number, 812 Cherry Street. I went up to Mr. Baskin, the county attorney, who lived near where I was, and talked to him about the matter. Mr. Baskin: This objection goes to all of that. Mr. Wilson: And under his instructions I proceeded to the City Hall and got two detectives, Rufe Porter and Tom Snow, and instructed them to send Mrs. Hargrave down to that house. Q. And who else? A. I only instructed them; they sent Mrs. Hargrave down there, and Snow and Rule Porter and myself went on down there. Mrs. Hargrave came after I got there. We walked in there and asked the lady some questions and finally I went into this room where Daisy Moore was sitting on the side of the bed and I sat down by her and asked her a few questions, who she was related to, and she told me, and then I asked her what was the matter with her, and she just hesitated and declined at first to answer any question, and then I told her, I said, `Daisy, I know about an abortion having been committed on you.' Mr. Hood: We specially object to the details of any conversation that was had, as to what he did. The Court: I sustain the objection. The witness (Mr. Wilson): I told her, without stating who had told me. *Page 586 Mr. Hood: We object to what he told her, if he got her and took her anywhere, that is different. The witness: What I knew at that time — not what I told her. I told her without telling her who told me what I know, what had been told me. Mr. Hood: Note our exception. We object to that, it was in the absence of the defendant and hearsay. Mr. Wilson: We understand you are making that objection to all of this. Mr. Baskin: And not waiving our objection to the whole of it? Mr. Wilson: Yes, sir. Mr. Baskin: Note our exception. The witness: I told her I wanted her to go ahead and tell me all the facts about this thing that happened at Fort Worth, and she sat there on the bed and refused for quite a while to say anything, would not make any reply. I insisted on her telling me about it, and the first word I believe she said — Mr. Hood: We object to anything she said. The court: I sustain the objection, don't give the details of any conversation. The witness: She finally, after insisting, she finally told me the facts. Mr. Shadle: We object to that. The court: I won't let him tell what the facts are. Mr. Shadle: I except. The witness: Finally told me about it, and Tom Snow and Mrs. Hargrave had gotten there by that time and were sitting there on the bedside, also these detectives were there; after she had told me this, I wrote a statement down about this affair here and she signed that statement, and after that was signed, I told her, I said, `Daisy —' Mr. Hood: We object to any advice he gave her. Mr. Wilson: If the Kirbys did not do this thing, it would be an inference we did it. The purpose is not to connect the defendant with this offense. The court: On what she told you, did you act? Mr. Wilson: I want to state to the jury just how this statement was brought about; they are going to take the position Kirby did it. Q. Did she make a statement to you? A. Yes, sir. Q. Which she told you was the facts? A. That is for the jury to determine whether they are the facts. Q. And on which you acted? A. Yes, sir. Mr. Baskin: We object to that on the same ground. Mr. Wilson: The State wants this evidence limited. The court: I don't want to go into the evidence — tell what you did, if you know who started this prosecution, tell it. A. I am trying to tell what I did, if the court will indicate without stating what she said or I said? The court: Yes, sir. The witness: After this statement was signed, with reference to this matter here, then came up the question, I won't tell what was asked as to who was the father of the child, that naturally came up. Mr. Hood: We object to any statements made relative to the father of the child. The court: Yes, you can not tell that. Mr. Wilson: I can state she refused for quite a while to state and finally she broke down in tears like she did on this witness stand and said — Mr. Hood: We object to what she said. The witness: Told the story she has told you all, gentlemen of the jury, and on that we acted, the county attorney's office acted. Mr. Shadle: We move to exclude his answer there — she told the same story she told on the witness stand. The witness: I did not mean she told all. The court: I sustain the objection of the defendant and will exclude that from the jury. Gentlemen of the Jury: You will not consider for any purpose whatever *Page 587 in this case the statement of Mr. Wilson made there about telling any story like she told here. Mr. Shadle: We still want our bill of exception. Mr. Wilson: With her statement, and I did not intend to say there she told all she has told in answer to the cross questions and direct questions like she did here. The court: Don't try to tell the substance any further, she made a story — she recited something to you? A. Yes, sir, on which this complaint was filed and this prosecution was commenced by the county attorney's office. Mrs. Hargrave, the matron, being there present at the time she made the statement, and Tom Snow and Rufe Porter hearing what was said. Mr. Baskin: They are detectives? A. Detectives of the city." The court in approving this bill did so with this explanation:
"The defense made it apparent that among their several defenses contention would be and was so argued by counsel that because of the supposed enmity between Geo. Kirby and the defendant, Kirbys had put the prosecuting witness up to charging the defendant with being the author of her shame and disgrace. The court permitted the assistant county attorney to show that the county attorney's department was responsible for the prosecution." Likewise, appellant accepted this bill as qualified, and, of course, is bound thereby.
Appellant contends, as a legal proposition and cites many cases to that effect, that the State can not prove by any witness that in his opinion an accused is guilty of the crime charged. Unquestionably, as a general rule, this is true. Based on this legal proposition appellant vigorously urges that the testimony of Mrs. Kirby, wherein she testified that her grandparents advised her to go back home and in the morning call up the prosecuting attorney's office, get Mr. Wilson, assistant prosecuting attorney, and tell them all about what happened, — tell them everything, is a statement by the Brownings that in their opinion appellant was guilty. We get no such meaning from this language or the circumstances shown by the evidence, or this bill, nor do we believe that the jury could have so understood, or gotten any such meaning out of it. Besides, it is perfectly clear from the whole record and this bill that both the State and the court were doing all they could to prevent any such illegal testimony being introduced and that they did so. Mr. Wilson, the State's attorney, specifically stating that this evidence "is not offered as any evidence tending to connect the defendant with the commission of this crime." We get clearly that the Brownings expressed no opinion whatever as to the guilt of anybody, nor that any crime had been committed, nor that, if a crime had been committed, what it was or who was guilty thereof. Evidently, from it, the Brownings did not know, and expressed no opinion that any crime whatever had been committed by anyone, nor by appellant, but were simply and solely telling the witness, in effect, not to institute any prosecution herself, but to lay the matter before the county attorney's department for their action.
Again, it will be noted that in the last bill above, the assistant county attorney expressly stated that his testimony was not for the purpose of connecting the defendant with the offense; that it was solely to meet *Page 588 the defendant's attack of the said witnesses and to show that they and neither of them instituted this prosecution but that the county attorney's department solely did so. And he again expressly stated of Mrs. Kirby's statement to him, that he was not telling what she said as a fact, but "that is for the jury to determine whether they are facts." Again it is clear from the court's rulings, from time to time, on appellant's several objections, that he was making clear the purpose and the sole purpose for which said testimony was introduced; and in addition, he again expressly limited the use of it properly in his charge to the jury. We can not believe from this record that the jury made any improper use of this testimony, or considered it for any improper purpose, but that they solely considered it, which they had a right to do, to determine whether or not they believed the testimony of said witnesses as to the material facts, showing and tending to show this offense, or, as attacked by appellant, that the testimony of said respective witnesses was wholly false, fabricated, and that from a corrupt motive, as shown above.
We deem it unnecessary to further discuss the questions urged by appellant. The opinion is already much too lengthy, which is regretted. We are entirely and fully satisfied that no error was committed by the introduction of said testimony.
The motion for rehearing is overruled.
Overruled.
September 8, 1914.