Concurring in the affirmance of this judgment, I do not care to go into a detailed statement of the case, the law or the facts. In a general way the record as well as the opinion and Judge Harper's dissent show when the appellant offered to prove acts of intercourse by prosecutrix with other men, objection was made by the State, and sustained. The court, upon reconsideration, informed the defendant and his counsel they could prove all such acts of intercourse and any other fact which tended to show the prosecutrix was not chaste; and, further, could show, if they so desired, her reputation along the same line. The bill of exceptions then shows, as qualified by the trial judge, that appellant did not offer any such testimony, but either declined or failed to do so. Of course, in this condition of the record, as to this matter, appellant is in no position to claim error. If he had such testimony and desired to use any or all of it, the court informed him that he could introduce it and get the benefit of it. Not having done so, he can not be heard to complain.
The State was permitted to introduce evidence of other acts of intercourse between appellant and prosecutrix. This was subsequently withdrawn by the court, appellant having objected. This character of testimony, under the decisions of this court, is admissible. I do not purpose to review those cases. The matter underwent thorough investigation and careful decision in Battles v. State, 63 Tex.Crim. Rep.; Smith v. State,64 Tex. Crim. 454; Cain v. State, 68 Tex.Crim. Rep.; Walls v. State, 69 Tex.Crim. Rep.. Other cases might be cited, coming down to and including Williamson v. State, 72 Tex. Crim. 618. The Battles case was written by *Page 41 Judge Harper, as was Smith v. State, 64 Tex.Crim. Rep.. The Battles and Smith cases both show that I dissented from the conclusion announced by the majority. If there was any error in the instant case, it was committed by the court in withdrawing that testimony, but of this, however, the defendant can not complain. If the State was entitled to prove other acts of intercourse between appellant and prosecutrix, certainly the defendant could not be injured by withdrawing such testimony on his objection. The State was entitled to this testimony; it was legitimate under those decisions. I do not care to follow that matter.
The State offered, and was permitted to introduce, evidence of the fact that appellant had been arrested under a complaint charging him with rape of Rosa Duffey, she being under fifteen years of age. This matter was gone into at some length over the objection of appellant. It seems that during the investigation of this phase of the case it was admitted by appellant's counsel that he had been arrested for that offense, but it later developed, however, that appellant had not been indicted by the grand jury. That case seems to have arisen or was based on a complaint; at least, the evidence is clear he had been arrested charged with that offense, but that he had not been indicted. This is accounted for by reason of the fact that after being arrested and before indictment, he married the girl. She then became his wife. The State was then also permitted to develop other matters in connection with it, among which was, that the girl, Rosa Duffey, had given birth to a child, and that appellant was the father of it. Appellant stated that he had never seen the child; but had married the girl and quit her that same night, she going her way and he going his, he having nothing further to do with her. This is the substance of the details, though it covered a lengthy examination. Under all the authorities, it was proper and legitimate for the State to prove that appellant had been arrested for another felony as impeachment, he having taken the stand as a witness in his own behalf. This matter has undergone investigation in a great many cases in the history of Texas jurisprudence. See Jackson v. State, 33 Tex.Crim. Rep.; Oliver v. State, 33 Tex.Crim. Rep.. These cases have been followed without intermission, so far as I am informed, in the history of our jurisprudence. So the court was not in error in admitting testimony as to the arrest for the previous extraneous felony. Appellant could thus be impeached. It was not necessary to produce the records, as the question was but one of impeachment. The details, however, were not admissible, and should not have gone to the jury, and, in my judgment, would have been reversible but for the fact that upon objection by appellant's counsel all of the testimony above mentioned in this opinion was withdrawn from the jury, and they instructed not to consider it for any purpose. These rulings of the court were made grounds of the motion for new trial, on the theory that appellant was injured, and the injury was not cured by the withdrawal of the testimony, and also that the jury discussed it. At appellant's request the trial judge *Page 42 issued process and secured the presence of eleven of the twelve jurymen to testify for defendant on this issue. Appellant used three of them, and failed to prove his allegations but proved by them to the contrary, and that in fact they paid no attention to it, and what was said or occurred among them was after they had found their verdict. Whether jurors can impeach or sustain their verdict or not, the defendant can not complain of the action of the trial court. These jurors were brought into court and testified at his request. He sought to attack their verdict but failed. It was not a refusal of the court to hear evidence on the question. He heard it. I am of the opinion under these circumstances, unless we overrule later decisions of this court, that this was not error such as would require a reversal of the judgment. My positions on these various matters are well known, but they have not obtained as dissenting opinions will show. Judge Prendergast has cited many cases in regard to the effect of the withdrawing of testimony.
The district attorney made a speech in which he referred to the fact that the defendant deserted Rosa Duffey after he had ruined her and had never seen his child. The court signs this bill with the qualification that all these matters were withdrawn from the jury not only verbally but in his general charge, and in giving requested instructions asked by appellant. This, in my judgment, is the only serious question. But for the later authorities I would have joined in a reversal of the case, but the matter has been fought out and the writer has often dissented. I might cite the later case of Little v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 326, as well as many others. The language used by counsel for the State in that case is more pungent and detrimental than the language imputed to the district attorney in this case. I do not care to burden what I have to say with repetition of questions in that case. It is shown in the majority opinion, in that case, and also each bill is set forth separately in the dissenting opinion and the authorities collated. I seriously doubt if we could find a case in which counsel went farther out of the record in testifying in his speech before the jury to matters that were of serious import, and which were not in evidence before the jury than shown by the Little case. That the matters stated in the Little case were damagingly adverse to appellant is not to be questioned. The opinion affirming that case is based upon the fact that appellant did not request special instructions withdrawing these remarks and testimony from the jury. In the instant case appellant's counsel did not request that the remarks be withdrawn, and no special instructions were asked about it one way or the other. The court in the general instructions charged the jury not to consider anything in connection with that character of testimony, and withdrew it entirely from their consideration, and also gave a special charge to the same effect, written and requested by appellant's counsel. There are many cases, in fact, a great number of them, which hold that improper argument by prosecuting officers not inherently prejudicial can not be reviewed on appeal unless defendant requested a special *Page 43 instruction that the argument be disregarded. For collation of a great number of such cases see Vernon's Criminal Statutes, on bottom of page 416, note 38, and generally see the same work, on pages 411 to 417, inclusive, for notes and collated authorities. I might also cite Parshall v. State, 62 Tex.Crim. Rep.; Creach v. State, 70 Tex.Crim. Rep.; Stanton v. State,70 Tex. Crim. 519; Johnson v. State, 74 Tex. Crim. 179, 167 S.W. Rep., 733; Hearne v. State, 73 Tex. Crim. 390, 165 S.W. Rep., 596; Williams v. State, 75 Tex. Crim. 56, 170 S.W. Rep., 708; Whitfill v. State, 75 Tex. Crim. 1, 169 S.W. Rep., 681; Johnson v. State, 76 Tex. Crim. 346, 171 S.W. Rep., 1128.
I do not care to go into the general doctrine laid down by the cases or deduce from them at this late date the general proposition that covers the withdrawal of testimony and its effect after having been erroneously admitted. As I understand this record there was no evidence that was erroneously admitted, so far as the acts and conduct of the prosecutrix and of the defendant himself are concerned. The error was with reference to the details of the matter in regard to Rosa Duffey. The withdrawal of the other testimony did not in any way assist the State, and in fact it was withdrawn at appellant's suggestion upon the theory that its admission was error. The details of the Rosa Duffey matter ought not to have gone before the jury, but it was withdrawn, and under these authorities it seems to be not reversible, especially as many of the cases indicate that even though error is shown and the defendant is guilty, and the minimum punishment assessed, it would not be reversible error. This is a doctrine that might be questioned if generally applied, or too generally so. The Menefee case, 67 Tex.Crim. Rep., 149 S.W. Rep., 138, I suppose, is cited as to the matters elicited from appellant in regard to details of his marriage to and desertion of Rosa Duffey, as well as his neglect of the child. I believe, as I have stated, this was error, but at appellant's request it was all withdrawn from the jury with positive instructions not to consider it for any purpose. In the Menefee case all details of the obnoxious evidence remained before the jury. It was not withdrawn. However, it may be seriously questioned if Menefee's case can be now regarded as the law. I believe it is, but the cases of Agnes Orner and Fry, decided a few days since, seem to me to be in direct conflict with the Menefee case. I dissented in the Orner case, but have not as yet written reasons. I agreed to reversal of the Fry case on ground stated by Judge Harper, but stated that there are other questions which ought to be held equally reversible. I have not as yet written my reasons in that case. It will be observed in that case many extraneous offenses were admitted over appellant's exceptions. It occurred to me and yet occurs to me that those two cases are in direct conflict with the Menefee case. Those offenses and their details in both cases were admitted as original, not impeaching testimony.
I do not care to amplify these matters. As this case is presented under prevailing opinions of this court I concur in the affirmance. *Page 44