A true copy of the venire under certificate of the clerk and seal of the court was served upon appellant as provided by Article 672, C.C.P. The complaint is that no precept was issued *Page 235 to the sheriff directing him to serve the copy as provided in Article 671, C.C.P. We have again reviewed the question at appellant's request. There is no doubt in our minds as to the soundness of our former opinion upon the point. The purpose of those articles is that a true and authentic copy of the venire be in the hands of the accused in time for him to make such investigation of the proposed jurors as he thinks proper, and be prepared to pass upon them when called for examination. The purpose of issuing process for witnesses is that they may be available at the trial. If the clerk should fail to issue process for witnesses requested by accused, but the sheriff in the absence thereof secures the presence at the trial of the witnesses wanted, accused would hardly be permitted to excuse himself for not using them because the officer in fact was without process to command their presence.
We have again examined the complaint based upon refusal of a continuance. Considering the entire record, as the trial judge was required to do in reviewing his action upon request for continuance, upon hearing the motion for new trial based upon such refusal, we are confirmed in our view that the learned trial judge committed no error in not granting a new trial upon that ground of the motion.
Counsel for the state asked prosecutrix if she had ever seen "defendant have intercourse with any one else," to which she replied in the affirmative. Upon motion the question and answer were withdrawn. Bill number six in which complaint of this matter is brought forward explains none of the surroundings, but presents only the question and answer. This bill was considered in the fourth paragraph of our opinion, and was disposed of alone on the recitals in the bill. When we go to the evidence we find the following statement of prosecutrix:
"One night we was out with Mr. Adams out in the country, near the Cooper place and Mr. Adams took hold of my arm and leg. That was out in the country and he turned off to the side of the road and Mr. Adams and me and my sister, Hellen, was along. When he took hold of my arm and leg, I don's know what he said. I don't know what he said to Hellen; but he told me to say what he done to that woman, he tried to get me to tell what he did and that was what he wanted to do to me. I won't tell what it was, I won't say what he said."
If appellant had in the presence of this girl had intercourse with some one else, and referred to it in the conversation detailed by prosecutrix, and was using that occurrence as an inducement to securing her consent to a like act with him it would not have been erroneous for the state to have proved the act of intercourse in her presence. If the question was asked in connection with the foregoing testimony of the girl it would have had a "significant *Page 236 bearing," and doubtless that fact was in the mind of Justice Lattimore when he used the expression. When the facts of the instant case are properly understood in connection with the bill of exception discussed we think no conflict will be found with the opinions in Haggart v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 330, Norman v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 991, Newman v. State, 85 Tex.Crim. Rep., 213 S.W. Rep., 651.
Complaint is made because we did not specifically discuss bill of exception number seven. It shows that prosecutrix testified that on the morning after they spent the night at Atlanta appellant and Tinker put the whisky they had with them the night before in the automobile and took it to Texarkana with them. Through the abundance of caution this testimony was withdrawn. Appellant asserts that our reasoning in the third paragraph of the original opinion does not apply because the offense had already been committed. It must be borne in mind however that the journey was still in progress; that according to the state's evidence appellant was intoxicated when they reached Texarkana; that on the road and after they reached there appellant and Tinker were impressing upon the girls that they must not disclose what had transpired on the night before. Under this state of facts we cannot discover how the statement that they carried on with them the whisky could have been harmful to appellant and especially in view of the court's action.
We do not understand appellant's bill of exception number eighteen to reveal any hearsay statement to which Maggie Ray was permitted to testify. When considered in connection with the statement of facts it shows plainly to relate to the same transaction about which prosecutrix had testified as set out in the second paragraph of this opinion on rehearing. Maggie was present at the time, as was appellant, and she was detailing what was said by him and prosecutrix on that occasion as well as what he did. Maggie's name was Maggie Helen and Naomi (prosecutrix) referred to her sister as "Helen," and Maggie, the witness, was the same party referred to as "Helen" in prosecutrix's evidence.
As requested, we have carefully examined bill number twenty-three. Appellant was asked upon cross examination if he had not carried a certain woman to the house where prosecutrix and her sister lived, and there had intercourse with her in prosecutrix's presence, and then later asked her to let him do with her as she had seen him do with the woman. These things appellant denied, and exceptions were reserved to the questions. Our views have already been expressed in paragraphs two and four herein, and a repetition is unnecessary.
Appellant has respectfully requested us to re-examine the entire statement of facts and his bills of exception to which our attention is directed in his motion for rehearing. The punishment which he *Page 237 is condemned to suffer is severe and he should not be forced to undergo it unless a fair trial has been awarded him. After a careful re-examination of the facts and the complaints brought forward in his bills of exception we have failed to discover anything which would justify a disposition of the case other than an affirmance. The learned trial judge appears to have solved every question of law upon which he entertained the slightest doubt in favor of appellant. The point upon which Tinker's case (No. 7269) was reversed did not arise in the trial of appellant.
The motion for rehearing is overruled.
Overruled.
(Delivered June 29, 1923).