We are urged to reconsider the ruling to the effect that there was no harmful error in receiving the testimony of the prosecutrix, Maggie Ray, and her sister Neoma Ray, after they had conferred with each other and with the district attorney and others in the presence of each other.
We understand from the two bills of exception on the subject *Page 148 that in opening the case, Neoma Ray was introduced by the State and at the close of her testimony, the court took recess until the following morning.
Before the recess she testified in substance that she and her sister, Maggie, together with Adams and the appellant traveled in an automobile from Mt. Pleasant to Texarkana, stopping over night at Linden or Atlanta; that she was given whisky by Adams; that they all occupied the same room in the hotel. This quotation is taken from her testimony:
"I can't tell you whether it was Linden or Atlanta we come through; we stayed all night at Linden or Atlanta one, some town where we stayed all night. I don't remember whether we stayed all night in a hotel or in a car on the road. I was in a rooming house when I woke up the next morning. When I woke up the next morning, Adams and Maggie and Ennis Tinker was in the room with me. I don't remember what time it was when I got up the next morning, along about 7:30 I reckon, that is what Maggie told me. Then we went to Texarkana in a car, Maggie and Adams and Ennis Tinker and me. Maggie woke me up that morning. I was in bed when she woke me up I reckon, in bed with Adams. Maggie had slept there in that house that night I reckon. She got up a little before I did. I saw her when she got out. I was in bed with Adams and then the four of us got up and went to Texarkana."
On the opening of court on the following morning, she gave this further testimony:
"That in Atlanta before she and her sister, Maggie Ray, and defendant Tinker and Adams started on their way to Texarkana, that she saw that very morning her sister, Maggie Ray, wash off of her legs and private parts some blood; that she saw blood on Maggie's legs; that Maggie washed that morning after spending the night in Atlanta."
Upon her giving this additional testimony, counsel for appellant developed this testimony:
"On cross-examination of this witness, when asked if that was the first time she ever told that, the witness replied: `I told it to the district attorney last night.' Defendant's counsel replied: `You told it last night?' and the witness answered: `My sister did.' Defendant's counsel then asked: `You heard her tell it?' and the witness answered `Yes, sir.' And on further questioning, the witness stated that the district attorney and the county attorney and the sheriff were present and questioned her and her sister, Maggie Ray, down at the jail last night and questioned them and talked to them while they were together; and also that Sheriff Reeves of Titus County was present but retracted the statement as to Reeves being present and stated he was on the front porch."
A motion to exclude the supplemental testimony was made on *Page 149 the ground that the violation of the rule disqualified the witness. At the beginning of the trial, the rule was demanded by State's counsel. Neoma Ray and Maggie Ray were witnesses. They were instructed by the court that they were to engage in no discussion of the facts of the case except with the attorneys and then only in the presence of an officer and not within the hearing of each other.
This is shown by the bill of exceptions: The objection was overruled and Maggie Ray was called by the State and, over appellant's objection that she had become disqualified by the violation of the rule, gave this testimony:
"I reckon I went to bed with Tinker; I was in bed with him is why I reckon I did. My dress wasn't off but my shoes and stockings was. I don't know who pulled them off. I had on a waist and drawers. Something occurred to me there that night. I waked up during the night; Tinker woke me up; he was hugging me up and he had his hands down there on my private parts. My drawers were off then. Tinker pulled them off. I know he pulled them off after we went to bed. He woke me up and had his hands on my private parts. When I said he hugged me up to him, I mean my face to his face. I know what is meant by my private parts. I know what is meant by the private organs of a man. Tinker put his private organ in mine. He penetrated my private organ with his. He did me that way twice that night. I reckon my sister was over there with Adams. When I got up next morning she was in bed with Adams. After I got up the next morning I went over there and woke my sister up. Then I bathed my private person and there was bloodand sticky stuff on my private parts and I bathed. We stayed allnight in Atlanta. I don't know whether the folks where we stayedhad gotten up before we left or not. We went to Texarkana when weleft there next morning and when we got there, went to a placeand ate breakfast."
The date of the alleged offense was March 20, 1922. The State's evidence was sufficient to show that both the prosecutrix, Maggie Ray, and her sister, Neoma Ray, were at the time mentioned under the age of fifteen years. This however, was controverted. The witnesses for the appellant testified to facts indicating that both of the girls were over the age of fifteen years. The mother was dead and the father was in the penitentiary.
Appellant testified in detail and denied that he had had intercourse with either of the girls. According to his testimony, he and Adams, with the consent of the father of the girls, took them from Mt. Pleasant to Texarkana, and on the way they stopped at Atlanta and spent the night. All occupied the same room. The girls slept in one bed and the men in the other.
The girls were separately interrogated by the county attorney in Texarkana on the morning of their arrival there. In this interview both made declarations coinciding with appellant's testimony. The *Page 150 county attorney said that Maggie Ray made contradictory statements but said that she denied throughout that Tinker had had intercourse with her or attempted to do so. Subsequently the girls were taken before a Justice of the Peace at Mt. Pleasant, and in an investigation conducted there, the prosecutrix denied categorically that she had had intercourse with the appellant or with Adams. During this interview, the county attorney and the witness Thompson were present. She persisted in her denial of improper relations with the appellant and Adams but said that her brother, who had been sent to the reformatory, had had intercourse with her; also other boys. The father, it seems, had been sent to the penitentiary for murder and had been on parole, but that the parole had been revoked. Thompson, who was present at this interview, gave testimony in accord with that of the Justice of the Peace touching the denial of the prosecutrix of the alleged fact that the appellant had had intercourse with her.
Neoma Ray, the sister of the prosecutrix, admitted on cross examination, that she, in these various interviews, had denied the facts relied upon to establish the offense. They were both later examined by another Justice of the Peace under oath, and the prosecutrix denied the commission of the offense by the appellant. Her sister did likewise. Similar statements were made by them on various other occasions, notably, to the witness Keeney, a lawyer at Texarkana. In this conversation, she said that she and her sister went to bed together, but when she woke up in the morning, she was in bed with Tinker and her sister in bed with Adams. To Newland, another attorney, she told that she and her sister went to bed together and also said that she had had intercourse one time, and later said that she did not know whether she did or not; that they were in bed together. She made a similar statement to the witness Williams, also an attorney. Several witnesses who had known the girls testified to facts showing their ages to be above fifteen years. Among these was the witness Honea.
The doctor who examined the girl on the following day testified in substance that the examination revealed the fact that the girl had had intercourse with some man, but that it was not recent, that is, not within two or three days prior to the examination. There was no evidence of force having been used. It was possible that a few hours antecedent to the examination the girl might have had intercourse with a man with an unusually small organ; that her organ was unusually large. The doctor further testified that if intercourse had taken place at the time testified to by the prosecutrix, he would have been able to detect it. However, on cross-examination, he said that if the organ had been washed after the intercourse, his ability to detect it was doubtful. At the time of the examination, the prosecutrix told the doctor that she had not had intercourse with anyone but that the condition of her organ was due to her "playing with it." *Page 151
The landlady in the hotel at Atlanta cleaned the room the next morning after it was occupied by appellant and Adams and the two girls. She found no stains of any kind on the beds but found a pair of children's pants in the room.
It is to be observed that the evidence was conflicting at every point. Touching the age of the girls, there was evidence, both direct and circumstantial, to the effect that they were over and that they were under the age of fifteen years. The same is true with reference to their previous chastity and of the happenings on the journey from Mt. Pleasant to Texarkana. This latter is notably true, due to the numerous denials made by both of the girls under oath in the several investigations that were made antecedent to the present trial and of the examination of the prosecutrix by the physician.
Both this court and the Supreme Court have frequently taken note of the necessity for careful scrutiny of the evidence and manner of trial in cases of this character. In the case of Davis v. State, 42 Tex. 229, it is said:
"The instruction of the court, to the extent to which it went, is unquestionably strictly accurate and correct. In view, however, of the nature of the case, the passion and feeling, if not prejudice, which such a charge as that preferred in the indictment is calculated to arouse, and the character of the essential question upon which its proper determination evidently turned, and meagre, indefinite, and, to some extent, at least, unsatisfactory, if not contradictory evidence, from which the conclusion of the jury was to be drawn, we cannot but think the charge of the court was neither so full nor perspicuous in directing the attention of the jury to the real issue in the case as it might and should have been."
And from the opinion of Judge Willson, speaking for this court in Gazley v. State, 17 Texas Crim. App. 277, we quote:
"And there may be a conviction of this offense even upon the uncorroborated testimony of the injured female, although she be a child under the age of ten years. (2 Bish. Ct. Law, 968; 1 Russ. on Crimes, 9th ed., 931.) But all the authorities agree, and especially in a case where the injured female is a young child, that this is a crime requiring special scrutiny by the jury, and a careful weighing of the evidence, with all remote and near circumstances and probabilities, in cases where the testimony of the injured female is unconfirmed by other witnesses. And it has been well said that `it should be the care of the prosecuting officer, in every case of this sort, to seek carefully for circumstantial evidence tending to confirm the main witness.'"
This view of the court has been given expression in cases holding the evidence insufficient, as was done in Gazley's case, supra. See also Montresser v. State, 19 Texas Crim. App. 281; Kee v. State, 65 S.W. Rep. 517; Adkins v. State, 65 S.W. Rep. 925; Donoghue v. State, 79 S.W. Rep. 309; Dusek v. State,48 Tex. Crim. 519; *Page 152 Alcorn v. State, 94 S.W. Rep. 468; Logan v. State, 66 Tex. Crim. 506, 148 S.W. Rep. 713; Edmondson v. State, 68 Tex. Crim. 113, 150 S.W. Rep. 917; Draper v. State, 57 S.W. Rep. 655; Elam v. State, 20 S.W. Rep. 710; Blair v. State, 56 S.W. Rep. 622; Duckworth v. State, 42 Tex.Crim. Rep.; Galaviz v. State, 82 Tex.Crim. Rep., 198 S.W. Rep. 947; Smith v. State, 86 Tex.Crim. Rep., 217 S.W. Rep. 156. This has also been emphasized in passing upon inflammatory arguments and the manner of conducting the trial, as in Venable v. State,84 Tex. Crim. 354; also to the abuse of discretion with reference to enforcing the rule touching the separation of witnesses. Crosslin v. State, 90 Tex.Crim. Rep..
Our statute concerning the separation of witnesses by placing them under the rule (Art. 719, C.C.P.) has been the subject of much discussion in the reports, and generally speaking, the holding is that the discretion of the trial court with reference to enforcing the rule is a broad one, not to be revised on appeal, except in cases of abuse, but that it should not be substantially abridged by any arbitrary action. See cases listed in Vernon's Tex.Crim. Stat., Vol. 2, p. 399; also Bishop v. State, 81 Tex.Crim. Rep..
In the case of Welhausen v. The State, 30 Texas Crim. App., 626, this court entered a reversal because the trial court admitted in evidence the testimony of a witness who had violated the rule with the connivance of the deputy sheriff. From the decision, this is quoted:
"That these provisions of the law were most flagrantly violated can not be questioned, and violated not only by the witness, but by the chief deputy sheriff. While it is true that the trial judge is invested with a wide discretion in all matters relating to this procedure, and that such discretion will not be revised on appeal unless it has been abused, the right to have the witnesses under the rule should not be denied or substantially abridged at the arbitrary discretion of the judge."
An example is also found in the case of Heath v. State, 7 Texas Crim. App. 464, from which we quote:
"While the law invests a large discretion in trial judges as to the examination of witnesses and the enforcement of the rule when the same has been requested by either party, yet this discretion is not arbitrary, nor is the statute giving the right merely directory and to be disregarded at pleasure. The right to enforce the rule is a right given by law, and it should neither be denied nor substantially abridged at the arbitrary discretion of the presiding judge. Being a right guaranteed by law, a defendantshould not after a request for its enforcement be deprived of itsbenefit, unless it should clearly appear that no possible injurycould result to him from its relaxation."
The abuse of discretion in excluding or receiving the testimony of a witness who has violated the rule is a matter of difficulty, *Page 153 subject to some contrariety of opinion, and obviously determinable upon the facts of each case. A witness may be punished for violating the rule, but generally speaking, the conduct of the witness ought not to deprive the party calling him of the benefit of his testimony. To do so, is to punish the party, who is not at fault, and not the witness who disobeyed the court. See Bishop's New Crim. Proc., Vol. 2, page 1191. The reason for this rule does not apply, nor does the rule operate in favor of one who has brought about, connived at or participated in the disobedience of the witness.
It is said by the Supreme Court of Missouri in State v. Gesell (124 Mo. Rep. 536) that "if the party who desires the testimony of the disobedient witness, has participated in his disobedience or has been guilty of connivance at the fault of the witness, that is to say, has been guilty of voluntary oversight or `passive consent,' while the witness by his presence was violating the rule, all authorities agree he should not be allowed to testify." See also Jackson v. State, 14 Ind. 327; Hubbard v. Hubbard, 7 Or. 42; Kelly v. Atkins, 14 Colo. App. 208; Murray v. Allerton, 91 N.W. 518. The opinion of this court in Welhausen v. State, 30 Texas Crim. App. 626, quoted above, is to the same effect.
In the case in hand, the State relied upon the testimony of the prosecutrix and her sister. They were placed under the rule at the request of the State. There was much conflict in the testimony, as indicated, and many contradictory statements by both of the eyewitnesses. Appellant denied the offense. The doctor-witness testified that his examination revealed no evidence of recent intercourse with the prosecutrix; that if the alleged act of intercourse was the first in the experience of the girl, it was unlikely that it could have been accomplished without pain or bloodshed. The linens upon the beds were shown by the State's witnesses, without dispute, to bear no bloodstain. The doctor based his opinion partly on the absence of any secretion or semen, but stated that if the organ has been washed after the intercourse, this would detract from the certainty of his opinion upon that phase of his testimony. Before the recess of court, the witness Neoma Ray, upon her complete examination, gave no testimony to the effect that the organ has been washed, and there was no evidence of blood disclosed. The witness, Maggie Ray, the prosecutrix, did not testify until after the recess. During the recess, both of the witnesses — Neoma and Maggie Ray — were examined in the presence of each other, and as stated in one of the bills, the whole case was gone over by the witnesses in company with each other and in the presence of the district attorney, the county attorney, and according to some of the testimony, in the presence of the sheriff. It can hardly be questioned that the interview with the two witnesses in the presence of each other touching the details of the case and their respective testimony, was a violation of the rule and the instruction *Page 154 of the court that they should be kept separated and should talk to no one save the attorneys and not within hearing of any other witnesses. After this interview, in which the State's attorney participated, the witness, Neoma Ray, was recalled and testified to new, pertinent, and damaging facts, supporting the State's case, corroborating the prosecutrix and breaking down the defense.
This the court refused to exclude upon the motion of the appellant and permitted the calling of Maggie Ray, who corroborated her sister, who gave testimony, which, if believed, strongly supported the State's case and tended to minimize the testimony of the doctor in that he said that the washing of the parts would have detracted from the value of his opinion and that the presence of blood would have done likewise. Previous to this transgression of the rule, there was no testimony of blood; no testimony of washing, notwithstanding the State had developed its case through the testimony of the witness Neoma Ray. The court in qualifying the bill said that it was his custom to allow the district attorney to talk to witnesses under the rule in the presence of the sheriff, and that in the instant case the court was of the opinion that the departure was not harmful to the appellant. There is no suggestion in the qualification that the rule was not violated, nor that the officer of the court had not participated by talking to the two witnesses in the presence of each other; nor do we find any basis for the opinion that no injury resulted. Doubtless the prosecuting officer was prompted by good motives, but his zeal, in our judgment, led him beyond the proprieties. The testimony which came after the conference in violation of the rule was in our judgment, important. It had not previously come to light so far as the record reveals. On the contrary, the opposite is indicated. That it was calculated to injure the appellant is manifest. The importance of the matter was not brought pertinently to the attention of this court at the time the original opinion was written, and it was then assumed that the act was merely one within the discretion of the court. However, upon a re-examination of the record and a more mature consideration of the matter, we are of the opinion that the procedure was not conducive to a fair trial, and that in view of the verdict assessing practically a life sentence against the appellant, a new trial should have been accorded him. For this reason, the affirmance heretofore entered should be set aside, the motion for rehearing granted, the judgment of the trial court reversed and the cause remanded. It is so ordered.
Reversed and remanded. *Page 155