Conviction for rape, punishment five years in the penitentiary.
Bills of exception Nos. 4, 5 and 6 present complaint of the refusal, respectively, to permit Raymond Gillaspy and John Bailey to testify for the defense, and to instruct the jury or permit them to be told that the defense had offered said parties as witnesses. The state's objection to the testimony of Gillaspy and Bailey was that they were indicted for complicity in the same offense here charged against this appellant. The objection was sustained upon the theory that Art. 711 of our Code of Criminal Procedure forbids the introduction as witnesses for each other of persons charged as principals, accomplices or accessories, whether in the same or different indictments, to the same offense. The decisions of this court have interpreted said statute as meaning that the offered witness, to be incompetent, must be indicted as a principal, an accomplice or accessory *Page 488 to the identical criminal offense charged against the accused on trial. Day v. State, 27 Tex.Crim. App. 144; Griffin v. State, 43 Tex.Crim. Rep.; Thomas v. State, 66 Tex. Crim. 326; West v. State, 98 Tex.Crim. Rep.; Smith v. State, 99 Tex.Crim. Rep.. Before the defense offered the testimony of said two witnesses in the case before us, the state had showed that both of them were indicted for rape upon the prosecutrix herein on the same date as is charged herein against appellant. The testimony before the court otherwise showed that Gillaspy, Bailey and appellant took two young girls, one of whom was prosecutrix, from their homes at night upon the pretense of taking them to a picture show, but instead the girls were taken to a dark and lonely road. When they left home Gillaspy told prosecutrix they were going to take appellant to Wolf's dance hall and were then coming back to the picture show, but they did not so take appellant, nor did they at any time go near Wolf's dance hall or any picture show. When the car in which they were, stopped on said road at the scene of the alleged outrage, appellant got out upon some pretext and walked away, leaving prosecutrix and her girl friend with Bailey and Gillaspy. The latter at once attacked prosecutrix, who pushed him away and jumped out of the car. He jumped out after her and began trying to put his arms around her. She got back in the car with her friend and Gillaspy followed her. She got up in an effort to get on the other seat, and he tried to pull her down in his lap, but she got in her friend's lap. Gillaspy then attacked the other girl, but presently got out of the car. Appellant, who had returned, told prosecutrix he wanted to talk to her and did not want Gillaspy to hear him because Gillaspy had a gun. Prosecutrix got out of the car and appellant took her a short distance. She heard her friend scream and started back to the car where the other girl, Gillaspy and Bailey were. She said to appellant that she did not care if Gillaspy killed her she was going back to her friend, but appellant told her she was not going to do anything of the kind and pulled her back. She got away from him and went back to where the others were, and got in the car. Appellant came and pulled her out of the car, over the car door, and dragged her, in spite of her fighting and kicking and screaming, and without the slightest protestation from either Gillaspy or Bailey, out aways from the car to a point where, by force, he had intercourse with her. After having accomplished this he let her go back to the car, and told her he was going to make Gillaspy let her friend alone and stop bothering prosecutrix. Arriving at the car appellant pulled Gillaspy from the *Page 489 car and they hit each other once or twice, but prosecutrix testified that when they did this they were laughing. Gillaspy then started pulling the other girl out of the car on one side, and Bailey began pulling prosecutrix out of the car on the other side. Appellant told them to let her alone; that prosecutrix got in the car, but Bailey and Gillaspy pulled her out, and took her, one by the feet and the other by the arms, out past a tree, which she caught hold of and held to with all of her might, but they prized her loose from the tree, threw her to the ground, and Bailey forcibly had intercourse with her, Gillaspy standing near. When Bailey had finished, Gillaspy indicated that it was his time, but she begged and cried and told them she believed she would die, was too weak to walk, and begged them to let her alone. Just before appellant took her and dragged her away from the car and ravished her, the three men had been apart to themselves talking.
We have stated only a part of the facts to make plain the proposition that we have had no difficulty under them in concluding that both Gillaspy and Bailey were incompetent as witnesses for the defense in this case, and that the state has, upon apparently good grounds, indicted both of them, and might, upon this testimony, seek a conviction of both, for complicity in the alleged rape here charged against this appellant, and that therefore under said statute neither of the bills of exception under consideration shows any error. As said in Jones v. State, 85 Tex.Crim. Rep., the disqualifying fact is that the witness is charged with the commission of the same offense as is the person on trial, and that it is the fact of such charge which under the statute renders such witness incompetent for the defense. We find nothing in any of the other cases cited by appellant, viz.: Secker v. State, 28 Tex.Crim. App. 479; Williams v. State, 146 S.W. 168; Clayton v. State, 78 Tex.Crim. Rep.; Welch v. State, 227 S.W. 301, and Cotton v. State, 244 S.W. 1027, which in anywise is inconsistent with the opinion just expressed. Upon no theory can we perceive any right of appellant to have the jury apprised of the fact that he had offered these incompetent witnesses.
Complaint is made of the refusal of a special charge on the issue of consent. The trial judge in his main charge gave substantially the same instruction as follows:
"In order to warrant a conviction in this case it must appear from the evidence, beyond a reasonable doubt, that the said Gladys Spivey used every reasonable exertion and means of resistance within her power under the circumstances shown by *Page 490 the evidence, to prevent such act of carnal knowledge, if any; and if you have a reasonable doubt as to whether the said Gladys Spivey did use every such reasonable exertion and means of resistance within her power, under the circumstances, you will give the defendant the benefit of such doubt, and acquit him."
This disposes of the complaints appearing on behalf of the appellant.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.