ON THE MERITS. Appellant was convicted of rape, and his punishment assessed at fifteen years in the State penitentiary. In obedience to the writ of certiorari issued from this court, the bills of exceptions signed by bystanders were sent up by the clerk of the District Court of Bexar County, and are now before us. The record shows that said bills of exceptions, seven in number, relate entirely to the argument of the district attorney in the case. They were each indorsed "Refused," by the district, judge, and were subsequently attested by three bystanders, and filed April 20, 1894, "but the file marks were erased. The verdict was rendered on the 18th of April, 1894. No reason is given for the refusal or the erasure of the file marks.
1. The question to be decided is, what consideration is to be given to a bill of exceptions which the court has refused to approve as presented, and failed to file one in lien thereof? Whatever may have been the practice prior to the adoption of the Revised Statutes (Paschal's Digest, articles 217-219; Houston v. Jones, 4 Tex. 170), it is now the statutory right of a party taking a bill of exceptions, if not permitted to do so at the trial, to write out and present the same to the judge for his signature during the term, and within ten days after the conclusion of the trial (Revised Statute, article 1363); and the "conclusion of the trial" is held to be after verdict, or after overruling motions for a new trial or in arrest of judgment, where the same are filed. Willson's Crim. Stats., sec. 2366; Shubert v. The State, 20 Texas Crim. App., 323; Blum v. Schram, 58 Tex. 524. The statute further declares, that when the judge finds the bill so presented to be incorrect he shall suggest the corrections; and, if not agreed to by the party presenting the bill, the court shall return the bill with his refusal indorsed thereon, and shall make out, sign, and file with the clerk such a bill of exceptions as will, in his opinion, present the ruling of the court as it actually occurred. Rev. Stats., arts. 1365, 1366. Should the party be dissatisfied with the bill of exceptions filed by the judge, he may then resort to bystanders, as provided in article 1367, Revised Statutes. Under the plain terms of the statute, the right, to resort to bystanders arises only when the court has refused the offered bill of exception, and filed his own bill in lieu thereof. Until that is done, the counsel can not assume that the court will act unfairly in preparing the bill, or that he may not agree to the bill as filed by the court. When therefore, *Page 468 he has within ten days after conclusion of the trial prepared and presented his bill of exception, and it has been refused, he has done all that can be required of him until the court acts in the premises as required by the statute. The defendant can not be made to suffer from the neglect of the judge; and if the court refuses the bill as presented and fails to file one in lieu thereof, then we will certainly look to the bill so presented and refused to ascertain whether it contains merit, and treat it as if it in fact had been approved. Belo v. Wren,63 Tex. 728. If the court should decline to indorse a refusal on the bill or refuses to permit it to be filed, appellant has simply to resort to his writ of certiorari for redress. Much of the difficulty with reference to bills of exceptions would be obviated if the court would permit them to be taken at the time the exception is made, and not wait until the result of the case has magnified the importance of the supposed error, when judicial action frequently invokes adverse criticism. It should always be remembered that the trial judge, while he may state reasons for his action, has no authority to contradict or qualify the bill of exceptions without consent of counsel (Revised Statutes, article 1366); and while such consent will be presumed when counsel accepts the bill after it has been changed by the court (Jones' case, ante, p. 7), yet counsel may insist that his bill be approved or refused without modification, and when refused, and after the court files his bill, then counsel will be allowed time sufficient to file a bystanders' bill, and, when the same is contested (Revised Statutes, article 1367), to have reasonable time to obtain supporting affidavits.
2. The evidence of the prosecutrix, who is a stepdaughter of the appellant, and under the age of 12 years, tended to prove that appellant had for months continued criminal intercourse with her until she ran away. There is but little corroborating testimony, except that her brother testified to having seen her crying, and she stated she dared not tell why, and the testimony of physicians as to her physical condition after she ran away. Her testimony is in many respects incredible, and contradicted by other witnesses. It is shown by bill of exceptions number 1, and corroborated by the statement of facts, that Mrs. Exon, the wife of appellant, was placed on the stand by the defense, and asked by him whether her daughter had ever complained of her husband raping her, or whether she had ever caught her daughter and Exon having criminal connection with each other, to which questions she replied, "No, sir." On cross-examination the State asked witness whether she had not lived with defendant as his mistress before marriage, and, upon objection, the court excluded the question. We think the court erred. The evidence went to the character and credibility of the witness. The State then asked the following question: "Did you not swear before the grand jury of this county, on the investigation of this case, that at 4 o'clock on a certain *Page 469 morning you caught your child and Exon in a compromising position, and you called out to him, and said, 'O, Willie, what, are you doing?' " Appellant objected, on the ground that the grand jury had no right to call the wife as a witness against her husband, and what she stated there could not be proven. In reply to the objection and argument of appellant's counsel, the district attorney said, in the bearing of the jury, that "the foreman of the grand jury, and every member thereof, will swear to it." The court sustained the objection, but appellant insists that he was greatly injured and prejudiced by the questions and remarks of the district attorney, and by the fact that, although the questions were excluded by the court, the district attorney, in his closing argument, commented on them as being true, over appellant's protest and objections. While it is true that the grand jury had no right to compel Mrs. Exon to testify against her husband, it does not follow that statements made by her to the grand jury, or to any one else, can not be used to impeach her when she testifies directly to the contrary on the trial. Appellant himself placed her on the stand as a witness, and, for the purpose of impeaching her daughter's testimony, witness was asked whether she ever, at any time, caught her husband and daughter having criminal connection, and she denied it. Her daughter had testified that she and defendant had been caught by the witness in the act. Having testified for appellant as to this matter, it was competent for the State to attack her credibility by cross-examining her as to her own contradictory statements made as to the identical matter; but it was only admissible for such a purpose, for this statement, made in the absence of her husband, could in no way be used against him. In Washington's case, 17 Texas Criminal Appeals, 203, this court held statements made by the wife, in the absence of her husband, admissible to impeach her credibility, though the questions in that case were held inadmissible because she had not been examined in chief as to the matter about which she was cross-examined. But it is said by the court, that had the defense opened the inquiry as to the matter cross-examined into it would have been admissible as impeaching testimony. While it was testimony to prove a collateral fact, to wit, the want of credibility, it was inadmissible to prove the main fact, to wit, appellant's guilt; and it becomes the duty of the court to see that the jury are carefully cautioned as to the object of such evidence whenever it is offered. Now, the evidence in this case was excluded by the court, but the district attorney informed the jury that the entire grand jury would swear to the fact that Mrs. Exon stated she saw her husband and daughter in a compromising position at 4 o'clock one morning, and called to him. Not only was this highly improper, but the court did not exclude this statement, but allowed it to remain with the jury, emphasized by the speech of the district attorney. Had the testimony been properly admitted, the learned judge would no doubt *Page 470 have cautioned the jury, as was not done. Washington's case, 17 Texas Crim. App., 204. There can be no question as to the importance of this testimony. The State had but slight corroborating testimony. The injured girl testified, that her stepfather forced her to yield to his desires every other day from May to January; that she cried and hallooed, but he frightened her with a pistol into submission; that she complained to her mother, who told her she didn't believe it; that one morning at 4 o'clock her mother caught her stepfather and herself in the act, but only blamed her for it. The statement of Mrs. Exon before the grand jury would therefore be naturally taken by the jury, unless carefully cautioned, to be strong corroboration of her daughter's evidence. It is therefore apparent that the court should so have instructed the jury, or excluded the testimony.
3. Making due allowance for the zeal of the district attorney and the excitement of the trial, and that he was fretted by the constant interruption of the counsel for defendant, we are of the opinion that the argument, as set forth in the bill of exceptions, was certainly objectionable in the inflammatory nature of its appeal to the passions of the jury. If the facts sworn to by the injured girl were true, it was rather a case invoking the sober, deliberate judgment of the jury, desiring to act justly, rather than the hasty decision of men aroused to indignant action by passionate invective.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.