A verdict of ten years resulted from the trial of appellant, Sam Jenkins, in the court below on a charge of rape upon a female under the age of consent. In the trial of the case in the court below the State, over the objection of the appellant, offered in evidence what purports to be a written confession of the appellant as follows: "I, Sam Jenkins, have been duly warned by the county attorney, L.O. Cox, that any statement that I might make could be used in evidence against me on a trial, and not for me, and that I do not have to make any statement, make the following statement:
"I am twenty-two years old; I know Eunice Williams, or rather Eunice Hudspeth; I have known her about two and a half years. I would judge her to be about fifteen years old. I was at the Williams house Tuesday night; there was a game of Forty-two there. While the rest of them were playing Forty-two Eunice was playing the graphophone; I was listening and she and I were talking, and while we were talking she agreed to meet me that night and have intercourse with me after the game was over and we were ready to go home. Louis Bounds and I went down in the field, and I told him to wait for me, and I went back and stopped at the cotton seed house, and in a few minutes Eunice came out to where I was, with one stocking on and one off, and a dark colored loose fitting dress on. She laid down on the ground at the northwest corner of the cotton seed house and I had intercourse with her. I penetrated her with my male organ, and did not have any trouble in entering her. I was there about twenty minutes, and we completed the act of intercourse before I left.
"(Signed) Sam Jenkins." *Page 238
This was objected to on the ground that the defendant was under arrest and in the custody of the sheriff at the time the statement was made; that said statement fails to show that it was made to the person who warned the defendant and that said statement fails to set forth that the same could be used against the defendant in a trial for the offense for which the confession was therein made. We think that these objections were well taken and that the court below erred in admitting the testimony. It is not necessary to write extendedly upon this subject. We think the cases of Robertson v. State, 54 Tex.Crim. Rep., and Young v. State, same volume, p. 417, decisive of the question. In both of those cases the written confessions offered in evidence omitted to state that the confession was made to the person who gave the warning. This is one of the prerequisites of the statute, the statute requiring that the written statement shall show that he has been warned by the person to whom the same is made, and must show that it may be used in evidence against him on the trial for the offense concerning which the confession is therein made. The confession in this case fails to state that it was made to the person by whom the warning had been given, and, second, it says on the trial, but does not state that such statement may be used in evidence against the defendant on trial for the offense concerning which the confession is therein made. There is nothing in the confession about any offense with which the defendant was charged. As said by this court in Robertson v. State, supra, "We think, undoubtedly, that this instrument was not admissible as a confession in view of the provision of our Code of Criminal Procedure as same now stands. Whatever may be thought of the wisdom of the Act of the last Legislature in respect to confessions; it is certain that the Legislature intended that before any confession of one in jail or in confinement should be admitted, that such instrument should contain, within itself, evidence that the person making same had been warned by the person to whom same was made; that he did not have to make any statement at all, and that any statement so made could be used in evidence against him on his trial for the offense concerning which the confession is therein made. The fact that such statement is contained in the certificate of the notary public does not meet the requirements in the statute. It can no more supply the recital of such fact in the statement than could an acknowledgment supply or take the place of a substantial matter required by law to be contained, or included in a deed or other instrument of writing." And this doctrine was reaffirmed in Young v. State, same volume. We therefore hold that the written confession was not such an instrument as, in the shape it is in, could be introduced in evidence and that it failed to comply with the terms of article 790 of the Code of Criminal Procedure, as amended by the Act of the Thirtieth Legislature; and that the court below erred in admitting said confession. *Page 239
On the trial of this case the prosecutrix took the stand and testified that she was about thirteen years old; that she had voluntarily entered into the act of intercourse with the appellant; that she had been doing such things ever since she was nine years of age, and that she had copulated with a great many persons — boys in the neighborhood — giving the names of several. She was examined by physicians and these physicians testified on the stand that she was a well matured girl and well developed; that her private parts showed that she had been entered and that such entrance had been so frequent and of such long standing as showed a full development of those parts, and that she could have intercourse with a man without trouble or pain. The contention of the appellant was that the prosecuting witness, Eunice Hudspeth, was a nymphomaniac; that she had all the symptoms of a nymphomaniac. These physicians stated what these different indications of nymphomania were, and that a woman suffering from nymphomania would conceive in her mind a fact, and that she would go into court or anywhere and testify and assert that a certain individual had copulated with her when such would not be the fact. That it was necessary in order that the physician could be able to make a proper diagnosis of nymphomania in this girl to know her ancestry — her mother and blood female relatives — and that if her blood female relatives were people of lewd character and wanting in chastity and of strong passions along this line, this would predispose the girl or offspring to have the disease of nymphomania. The appellant then offered to prove by the witnesses Ed Wynne and L.H. Bramblett that the reputation of the mother of prosecutrix and the reputation of the sister of the prosecutrix was bad for chastity; that said witnesses would have testified, had they been permitted so to do by the court, that the reputation of the prosecutrix' mother and sister was bad for chastity. The court refused to permit such testimony to go before the jury and in his qualification to the bill stated that same was refused because the appellant's expert, Dr. Sturgis, in response to interrogatories put by the court, stated that the general reputation of the prosecutrix' mother and sister for chastity, if bad, would throw no light on whether or not said prosecutrix had nymphomania, and said physician, together with Drs. Gordon and O'Brien, at the time of this trial, and after he had been placed on the stand and testified in part, at the instance of the court, made a physical and mental examination of prosecutrix, and each swore she was sound mentally and physically and had no nymphomania. However, Dr. Gordon, Dr. Underwood and Dr. Greenwood all swore that the symptoms of this girl indicated that she had that disease, and that if her ancestors were lewd, that it would show a predisposition on her part to have said disease.
We are unable to agree with the contention of appellant that the reputation of the mother and sisters of the prosecutrix would throw any light upon the issues involved in this case. As we understand, *Page 240 reputation is one thing and the facts another. A person may have a reputation for a thing, but that would not establish the existence of the fact. Here the appellant was contending that the prosecutrix was laboring under the disease of nymphomania, and that if her mother and blood relations were people of inordinate passions, that it would predispose the prosecutrix to this disease of nymphomania. This question will be decided by the court when it is presented in proper form. We hold, however, that that can not be established by the general reputation of the blood relatives in the ascending line, and that the court below did not err in refusing to permit appellant to prove the general reputation for chastity of the mother and sisters of the prosecutrix, and that the same could throw no light upon the issue before the court.
3. Complaint is also made of the charge of the court wherein the issue was submitted to the jury on the subject of nymphomania, which charge is as follows: "Now, if you believe and find from the preponderance of the evidence in this case that Eunice Hudspeth, on the 23d day of March, 1909, or at the time she testified in this cause, was laboring under such a defect of reason from nymphomania or other disease of the mind, and under such derangement of the mind as to render her incapable of receiving a sound mental impression, of the transaction regarding which she testified, or if you believe that she had the capacity to receive such mental impression as would render it impossible for her to retain and impart such impression correctly; or if she is laboring under such defect of reason from disease and derangement of the mind as would render it impossible for her to know and understand the nature and obligation of an oath, then in law she would not be a competent witness, and if you should so find, you will disregard her testimony altogether and not consider it for any purpose in this record.
"If, on the other hand, gentlemen, the defendant has not established by a preponderance of the testimony that she was laboring under a diseased condition of the mind caused from nymphomania or some other disease on the 23d day of March, 1909, and if he has failed to establish by a preponderance of the testimony that she was at the time she gave evidence in this case laboring under a disease of the mind that rendered her incompetent to testify, as set out in the last preceding paragraph of this charge, then you are instructed that you may consider her testimony in passing on the guilt or innocence of the defendant, you being the judge exclusively of the weight to be given to her testimony and the credibility of her as a witness."
We do not think this charge is subject to the objection of counsel for appellant, but think the charge is correct and follows the rule laid down in the case of Tubb v. State,55 Tex. Crim. 606.
4. Complaint is also made by bill of exceptions that the court only allowed appellant's counsel an hour for the discussion of the *Page 241 case before the jury, and that this was not sufficient time to present the case fairly and intelligently to the jury. The court qualifies this bill by stating the defendant lacked a few minutes of consuming the hour given by the court for a discussion of the facts before the jury. We would not feel justified in reversing the case for this reason. We would, however, suggest that in capital cases sufficient time should always be given for a free and large discussion of the facts. Our statute, article 705, Code of Criminal Procedure, provides: "In prosecutions for felony the court shall never restrict the argument to a less number of addresses than two on each side." The bill of exceptions shows that appellant had several counsel defending him, more than two. The statute puts no limit to the time that shall be occupied by counsel in the argument of a case, and in the trial of a case where the whole argument is left by statute to the regulation of the presiding judge, this court would never be warranted in reversing a case because the court below placed a limitation upon the argument, unless it manifestly appeared that injury resulted to the appellant by such limitation. This court held in the case of Walker v. State, 32 Tex.Crim. Rep., that on a trial for theft, where more than twelve witnesses had testified and the issues were strongly contested, and the evidence mainly circumstantial, it was error for the court to limit the argument to forty-five minutes. We would suggest, therefore, that trial judges should not unduly limit counsel in their arguments, and that in all cases involving capital punishment it is the better practice to allow counsel ample opportunity to present the questions fairly, thoroughly and fully before the jury. Where the issues made in the court below were somewhat of a novel character, as is shown in this record, we are of opinion that an hour would not be sufficient time in which to present the case to the jury. However, we do not consider this a ground for reversal in this case.
5. It has been held by this court that it was error to allow the State to prove, in a rape case, that defendant was a married man. We suggest, on another trial, this fact be not admitted.
For the error pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.