Appellant was convicted of the offense of sodomy and awarded a penalty of seven years in the state penitentiary.
The facts show that by means of using his mouth on the sexual parts of a 13-year-old boy, appellant had carnal copulation with such boy.
The evidence shows that on the day in question the appellant offered to show this boy some recently born puppies in a trailer house where appellant was living some short distance from where the boy lived. At such time the boy and his cousin, a 22-year-old-woman, were sitting on the side of an empty swimming pool about 75 yards from appellant's house, where they were reading a 'funny book'. Upon appellant's invitation to both of them, the woman declined, but the boy accepted the invitation to go look at the puppies. The boy entered the trailer, sat down on the bed and began looking at and playing with the puppies. Appellant disrobed himself, pushed the boy down on the bed and attempted to cause him to fondle appellant's private organ, which the boy refused to do. Appellant then unbuttoned the boy's trousers and took his male organ in his (appellant's) mouth. The boy claimed to be frightened, and in a short time slid off the bed and ran away, leaving appellant playing with his own male organ.
There is only one question of importance offered herein and that relates to certain statements later made by the boy as to what took place in the trailer house with appellant.
All four bills of exception herein are in an improper form, all of them being based upon one heading and containing many propositions, partially in question and answer form, and all being under one heading, which is shown in Bill No. 1. The appellant, with a sub-head of Bill No. 2, then set forth a mere continuation of what was complained of in Bill No. 1, with further testimony of the boy. Then, again, under the heading of Bill No. 3, there is set forth the complaint of testimony of the boy's mother, with no separate heading, this bill occupying about a page, the major portion thereof being in question and answer form without any certificate of the trial judge authorizing such. Again, with no separate heading, Bill No. 4 sets out in question and answer form much of the boy's testimony herein, together with running objections thereto; and again, therein is set forth the objection to the testimony of the woman cousin of the boy, containing many objections thereto, being more than a page thereof. Finally, the trial court *Page 985 signs one approval for this four-purpose bill, making no statement relative to the question and answer phase thereof.
This bill is multiplicitous and also multifarious, as well as duplicitous and difficult to understand, but we do gather therefrom that the appellant was displeased with the court's ruling in admitting under the rule of res gestae what the boy told his cousin, and also the fact that he told his mother something as to this occurrence, but just what he told the mother is not shown. These bills will not be considered.
The facts do show that appellant and the boy were gone only about fifteen minutes from the sight of this woman cousin; that the boy came from the trailer house of appellant in about four minutes after this complained of occurrence; that he was pale and shaking and excited; that he immediately told this woman what had occurred. We hold this to be res gestae of such occurrence and admissible as such. Res gestae overrides the rules of hearsay and secondary evidence and becomes itself the thing speaking, and as such, is direct testimony. This woman was about 75 yards away from appellant's trailer house. She saw appellant and the boy go towards the house, and in about 10 or 15 minutes the boy came out of the house to her; that he was scared and shaking and told her what he said had occurred. This is clearly res gestae of the transaction. See Branch's Criminal Law, p. 197, section 339 et seq. See also Glover v. State, 126 Tex.Crim. R., 70 S.W.2d 155. The trial court, in an excess of caution, submitted to the jury the question of the accompliceship of this boy, although we find no basical reason therefor.
We are indebted to counsel for a learned and ingenuous brief herein, but we see no error evidenced by the record.
The judgment is accordingly affirmed.
On Motion for Rehearing