Appellants complain in their motion because, as they allege, there was no corroboration of the testimony of the prosecutrix, who, on account of her failure to make an early outcry and complaint, falls into the category of an accomplice witness. To this lack of corroboration we are unable to agree. Annie Mae Fields, prosecutrix's companion, testified as follows:
"We all got out of the car. Then Jeff carried her on up the road; he carried Dona. Dona told him she wanted to go back to the house. They went on up the road. As they went up the road Jeff had hold of Dona; he was pulling her up the road. They went on up the road and stopped and she called me and Jeff called Travis. She hollered for somebody to come and help her; she said for someone to come and help her. Travis went on up the road then. When she hollered to come and help her I went up there where she was at. There was some banks on that road. She was up on one of the banks. At that time Jeff Hughes was up there on the bank with her. Travis was out there in the road at that time. Jeff Hughes called Travis at that time and Travis went on up the road. I saw him catch hold of Dona Mills. He had her arm. Dona was trying to get loose at that time; she was pulling and trying to get loose. Jeff Hughes was holding her. After Travis caught hold of her I didn't see Jeff Hughes do anything to her clothes. I did not see him at any time up over her; that is, Jeff up over that girl. I did catch hold of Travis Tomlin to pull him loose. At that time he had hold of Dona. He turned loose. Jeff was there with Dona when Travis turned loose of her. He was holding her. I never saw him work with her clothes any. Dona was on her back. She told me to make 'em leave her alone. When Travis turned her loose I went on back to the house. Travis went back down the road to the house. * * *
"Dona was hollering for me to come down there. She was screaming and taking on right smart. She was calling somebody to come help her. She hollered for somebody to come over there and help her. She was still hollering that when I left. Travis and I went on back to the house while she was still hollering. I couldn't hear her when I was down to the house. I don't know just how far it was up there, whether it was 50 or 75 yards. *Page 217 I think it was about half way between Shorty's and Charley Owens', maybe back towards Shorty's a little bit. She was on the ground when I left her. She said 'I want somebody to come and help me.' I didn't particularly know what was taking place. I didn't think Jeff and Dona was just wrestling. I didn't particularly know what was taking place. I didn't know exactly what was taking place. Well, yes, I had some idea why that boy would be down over her like that; have a little. I say she was calling for help, and as she was calling for help I walked off and let her alone. As to whether Travis did the same thing, I was afraid Travis was going to catch hold of me. Travis left there, though, while she was still crying for help. * * * I do know that I went up there where Jeff and Dona were. I went. I did help her. I walked away while she was still calling for help. I heard her scream outside of just calling for help; she screamed. I don't remember just how many times. I would say about four or five times."
We think the prosecutrix was amply corroborated by the above quoted statements, and also by the physician who examined her body a few days after this alleged occurrence is supposed to have happened, and found "there were several bruised places about her, on her body, and especially her limbs, lower limbs."
Appellants further complain because of the matters and things set forth in their bills Nos. 2 and 3 relative to attempted proof of the reputation of the appellants for being peaceable and quiet.
Had the question been properly framed, and been directed to their general reputation in the neighborhood in which they resided for being of a peaceable and quiet nature, such would doubtless have been admitted by the trial court. It is to be noted, however, that such question was not so phrased. It is also to be noted that the bills of exception do not show what the witness would have answered as to whether that reputation was good or bad. We could surmise that had the proper question been propounded, the witness would have answered favorably to the appellants, but we are neither required nor justified in thus going into the realm of speculation. We can only follow the rules laid down by this court as the law, evolved, as they have been, through long years of experience in such matters. As the matter is here presented, we see no error in the court's ruling.
Appellants again urge that the trial court committed error as shown by their 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th propositions, all of which can be treated together as they are all based upon the same legal principles. They are based upon *Page 218 what is claimed to be newly discovered testimony, and all impeaching in their nature, such as to whether or not prosecutrix danced with Travis Tomlin after the alleged assault; or as to whether or not she made statements before the grand jury that were contradictory of her statements made on this trial; or as to whether or not she stated before the grand jury that she made outcry at the time of the alleged assault; or as to what her grand jury testimony was as to how close her girl companion, Annie Mae Fields, came to her when she was struggling with appellants at the scene of the alleged offense.
In the motion for a new trial, sworn to by appellants, by a general affidavit, the statement is made that the newly discovered testimony, relative to the statements made by the prosecutrix before the grand jury, was not known to defendants until after the trial. There is no affidavit relative to the diligence of either of the appellants or their attorneys to discover this testimony during the trial of the case; there is no reference by name as to the person who informed them of any discrepancy in the testimony of prosecutrix before the grand jury and before the trial jury, and naught to have shown that further proffered newly discovered testimony of alleged acts of unchastity between prosecutrix and others had not previously been communicated to appellants or their attorneys. We said in Garner v. State, 272 S.W. Rep. 167: "An affidavit showing that the evidence was unknown to appellant or his attorneys before the trial, that the failure to discover it was not due to a want of diligence, that its materiality is such as would bring about a different result, is essential where the ground of the motion is newly discovered evidence. See Nothaf v. State,91 Tex. Crim. 378, 239 S.W. 216, 23 A. L. R. 1374, and cases cited."
In fact it is shown by one of the affidavits introduced on the motion for a new trial that one of the witnesses, relative to having seen a specific sexual act of the prosecutrix, had communicated to the appellant Hughes what his statement would be as to such matter. Ordinarily the probable truth of the newly discovered testimony is a matter for the court, as is also the fact as to whether its introduction would have affected and probably changed the verdict. The trial court's holding herein is tantamount to saying that it would not have probably changed the result of the trial. The appellants were given the lowest penalty by the jury, and, therefore, in the event of a conviction it could not have decreased the penalty. According to Hughes' own testimony, he had intercourse with this helpless girl, and, according to her testimony, he seemed to have been experienced in such matters, as evidenced by her testimony, while struggling with *Page 219 her, when he said: "Hell, you just as well to come on and give me a piece; you are out with old Hughes now; when he takes 'em out he gets it."
While these cases are matters that easily arouse the prejudice and passions of a jury, and might cause them to give a more severe penalty than might be warranted under the facts, we feel that such has not been done in this case. The young lady had a right to preserve the sanctity of her body, and if the testimony in this case is to be believed, as it seems to have been by the jury, she did her best to keep this young man Hughes from violating her, and so successful was she in her efforts that it necessitated the aid of his companion, Tomlin, before their joint efforts overcame her resistance. They placed themselves in this unfortunate position in order to gratify the unholy lust of Hughes, and we can see no legal reason why they should be extricated unless they have not received their legal rights under the law. We think their legal rights have been accorded them, and we see no reason to recede from the position taken in the original opinion, and the motion is therefore overruled.