Conviction for rape; punishment, death.
There is some contention that the evidence does not show a rape by force or threats, it being averred in the indictment that the rape was by force and threats. A statement of the pertinent evidence is deemed necessary to make clear our holding that the proof is sufficient to meet the averment in the above regard.
Prosecutrix and a man friend, West, were in a car in the *Page 572 suburbs of Houston. Appellant and another negro, each having a pistol, appeared at the side of the car. After taking from West what property he had, the men ordered him to drive the car down the road. He obeyed, each negro standing on the running board, one on one side and one on the other. They held their pistols in their hands. Davis, the other negro, held his pistol against the head of West. Appellant, on the side where the woman was, according to the testimony of Mr. West, did as follows: "Made us drive down the road; he held his gun right in our faces all the time. He told us to shut up talking, that he would do the talking. He fired the pistol, and said he wanted to show us the gun was loaded. * * * He said he wanted to kill us both so bad. * * * We drove about a mile and a half * * * then Tom Cook told the girl to get out of the car. The other negro with his pistol, was still standing on the running board, with the pistol back of my head. * * * Tom Cook told me to keep my damn mouth shut, that he was going to kill us both. * * * Tom Cook took the woman right behind the car. * * * I should think Tom Cook had her back of the automobile there on that road for fifteen minutes. It seemed like quite a long time to me. Then he permitted her to come back to the car where the other negro had me covered with the pistol. He (the defendant) came back with her with the pistol still on her." In another place West testified as follows: "Tom Cook had an automatic. * * * He had it in his hand. * * * He had it when he went to the back of the car. He had it when he came back. Davis stood on the running board while defendant was back of the car. * * * He had the pistol back of my head all the time. * * * The automatic Tom Cook had was the one that was fired."
Prosecutrix swore as follows: "He (referring to appellant) ordered me out of the car, and I wouldn't get out. He had a gun right in my face. I was finally taken out of the car. * * * He forced me out with the gun. He fired the gun once before that. * * * He threatened me with the gun. He said he would kill me with it. * * * Tom Cook took me out of that automobile and took me just back of the car where I was assaulted. He had his pistol at that time. * * * He caused me to lie down on the ground. He told me to get down. He held the gun on me. He had intercourse with me. * * * He still had his gun in his hand when he went back of the car. I don't remember what I said to him back of the car. I don't remember what he said to me. I am positive this is the negro. * * * How could I ever forget that negro. * * * I only left the front seat when the negro held the gun on me and forced me out of it. * * * *Page 573 I have been married." Appellant did not testify. We think the above testimony amply sufficient to show an assault by force and as a result of threats.
There was no exception to the charge which submitted the case both on threats and force. There was a general verdict of guilty.
We find three bills of exception. In the first appears complaint because the court would not allow appellant to ask Mr. West if he had not been with the jury during the trial. Just what was in the mind of appellant's counsel to undertake to ask this during the trial, is not clear, but the bill is qualified by a showing that at some stage of the trial the deputy sheriff, in charge of the jury, mistaking Mr. West for one of the jurors, caught him by the arm and moved him into the jury room door. When West informed the officer that he was not a member of the jury, he was allowed to leave. On the hearing of the motion for new trial the matter was fully gone into, and the facts showed no communication on West's part with anyone of the jurors and none on their part with him. We fail to see any misconduct.
Bill of exception No. 2 complains of two questions and their answers. It is not necessary to notice question No. 1 for the reason that in the qualification put on said bill without exception, the trial court certifies that no exception was taken to the asking of this question or its answer. Question No. 2 should not have been asked, and but for the fact, — as certified in said qualification, — that appellant's own counsel asked and had answered a question which put before the jury in substance the very matter contained in the question to which appellant was objecting, — we would have been compelled to order a reversal. Mr. West, state witness, was asked, according to the complaint: "And you say he gave you the name of Cleveland Davis, who was arrested, tried and convicted of this offense?" Which was objected to, among other reasons, because it put before the jury the information that Cleveland Davis, a codefendant, had been tried and convicted of the offense for which appellant was on trial. This question Mr. West answered in the affirmative. The evil effect of this testimony is obvious, and it is greatly to be regretted that such question should have been asked. The trial court instructed the jury not to consider said question and answer. It is further shown by the qualification referred to that said witness was then taken by the defense upon cross-examination and asked as follows: "The testimony that the other negro was convicted on is not the same testimony you are giving *Page 574 here today?" To this the witness answered "Yes, sir." That this obviously put before the jury the very matter claimed by appellant as harmful, in his objection to question No. 2, and its answer, viz: that the other negro had been convicted on the testimony now given, brings the whole matter squarely within the holding of this court in numerous cases wherein the rule is laid down that a reversal will not be ordered for the admission of testimony deemed objectionable, even though properly excepted to, when substantially the same testimony is before the court otherwise without objection. Boney v. State, 110 Texas. Crim. Rep., 371; Anderson v. State, 110 Tex. Crim. 241; Bryant v. State, 109 Tex.Crim. Rep.; Wagner v. State, 53 Tex.Crim. Rep.. In the light of the qualification to this bill, it manifests no reversible error.
The remaining bill sets up complaint of the refusal of the state's attorney to tell appellant's attorney the names and addresses of the parents of prosecutrix. It is averred that appellant would have gotten from them certain testimony, in effect, that prosecutrix did not tell them when she got home of having been raped. This bill is also qualified and attention called to the fact that prosecutrix herself testified on the trial that she did not tell her parents when she got home, they being quite old and she did not want to report the matter to them. She lived with them, and her name and address were on the indictment when returned, and it appears from the qualification of the court that any information desired by appellant's attorney could have been obtained by investigating at such address. No exceptions to the charge of the court appear.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.