Hughes-And-Tomlin v. State

*212 Krueger, Judge. The offense is rape; the punishment assessed is confinement in the state penitentiary for a term of five years. Appellants’ main contention is that the evidence is insufficient to sustain their conviction of rape by force and without the consent of the alleged injured female. Prosecutrix testified, in substance, that on the night of April 16, 1937, she attended a dance at Shorty Samford’s home. That after they had danced a while, the appellants asked Annie Mae Fields and herself to go with them to an automobile and talk awhile, to which they agreed. In going to where the car was parked, she and Jeff Hughes led the way and Miss Fields and Tomlin followed. Hughes and prosecutrix entered a sedan parked furtherest away from the dance, and when Tomlin and Miss Fields started to enter the same automobile, Hughes asked them not to and they went toward another car. While they were in the car, Hughes began to take liberties with prosecutrix which she resented. He then asked her to lay down on the back seat, saying that he could not have intercourse with her sitting up. She called Miss Fields and when he saw her coming he released her. She then got out of the car to go to the house, but he took hold of her hands and pulled her up the road for some distance, tripped her, and while she was on the ground again undertook to have intercourse with her, but she resisted and called for help as loud as she could. Hughes then called Tomlin to hold her while he had intercourse with her, which he did. During all of this time, according to her testimony, she resisted with all her might and called for help. After the act, she returned to the house where the dance was in progress and danced two sets before going to the home of her grandmother where she spent the night. She made no complaint concerning the outrage until the Wednesday following the occurrence on Friday night. Miss Fields testified that she saw appellant pulling prosecutrix up the road and heard her calling for help. She heard Hughes calling for Tomlin to come and he went. She saw Tomlin take hold of the prosecutrix, (who was still screaming and calling for help) and hold her down. She further testified that she then went to where the parties were engaged in the struggle, caught Tomlin by the arms and asked him to leave prosecutrix alone. When Tomlin turned prosecutrix loose, she (Miss Fields) went back to the house and Tomlin also went back. Prosecutrix was still hollering at the time they were going back. Miss Fields testified that the reason she left was because she was afraid she might be subjected to the same outrageous conduct. *213 Dr. Hurst testified that a day or two after he heard of the occurrence, he examined the prosecutrix and found several bruised places on her body, especially on her lower limbs. He found that her hymen was not completely destroyed. The appellant, Tomlin, denied having had any connection with the commission of the alleged offense; he denied hearing prosecutrix scream and call for help and denied that he held her down while Hughes outraged her. The appellant Hughes, admitted that he had sexual intercourse with prosecutrix at the time and place in question, but denied that he did so by force and without her consent. None of the other people at the dance heard any screams or calls for help. Appellants, in an ably prepared brief, point to some discrepancies, as well as conflicts in the testimony. This court is not required to' pass on these matters, since they are peculiarly within the province of the jury, who are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given to their testimony. In this case the prosecutrix makes a complete case. But having failed to make any complaint until four or five days after the occurrence, the case falls within the rule requiring corroboration of her testimony in order to sustain a conviction. See Gray v. State, 93 S. W. (2d), 1146; Davis v. State, 272 S. W., 480. Therefore we must look to the testimony of other witnesses to determine whether she has been sufficiently corroborated in her testimony. The act of intercourse being admitted, we need look only for testimony showing corroboration on the question of force and want of consent. Prosecutrix testified that Hughes tripped her up and had her laying on her back when he called to Tomlin to come and hold her down while he engaged in the act of intercourse. That she resisted with all her might and called for help, but to no avail. If this is true, there is no doubt but that she was outraged by force. On this point, we think she is corroborated by Miss Fields, who testified that she heard her screaming and calling for help. That when she (Miss Fields) arrived at the scene, appellants had her laying on her back and Tomlin was holding her down; that she took Tomlin by the arm, pulled him and told him to let her alone. The doctor who examined her testified that he found bruises on her body, especially on her lower limbs. It occurs to us that under these facts we would not be justified in holding as a matter of law the corroboration of prosecutrix’s testimony insufficient. *214 By bill of exception number one, appellants complain because the court declined to permit them to prove that the Grand Jury, at the July Term, 1937 of said Court failed to return an indictment against them, although prosecutrix appeared before said body and gave substantially the same testimony that was given upon the trial of this case. The action of the Grand Jury or their failure or refusal to indict appellants was not admissible in evidence. Bills of exceptions numbers two and three are insufficient in that they fail to show what answers, if any, the witnesses would have given. Moreover, the questions were improperly phrased. Bill of exception number four complains of the following argument by the county attorney: “I want to tell you that I think these boys (speaking of the defendants) are extremely fortunate. I want to commend Mr. Mills (the father of the prosecutrix) for his attitude in this matter. I say that these boys are fortunate that Mr. Mills did not take this matter into his own hands and not bring it into court and subject his daughter to the embarrassment of having to testify in this case.” Appellants objected thereto and the court sustained the objection and instructed the jury not to consider it for any purpose. The court withdrew it from the consideration of the jury; consequently no reversible error is reflected by the bill. Appellants, in their motion for a new trial, alleged among other things that since their trial, they had discovered an important witness in the person of Barney Cogswell, who would testify that some two years prior to the time of the alleged offense, he had sexual intercourse with prosecutrix on several occasions. Appellants offered him as a witness upon a hearing of their motions and in support of its allegations. We do not deem it necessary to enter upon a discussion of his story, inasmuch as his claimed previous acts of sexual intercourse with her are not admissible in the trial of appellants for the offense of rape by force. See Wood v. State, 80 Tex. Crim. Rep., 409; Lawson v. State, 17 Tex. Crim. Rep., 292; Graham v. State, 67 S. W. (2d), 299. Moreover the granting or refusal of a new trial based on newly discovered evidence ordinarily rests within the sound discretion of the trial court and unless it is clearly made to appear that the court abused his discretion, this court would not be justified in reversing his judgment on that question. However, it appears to us that the claimed newly discovered evidence is impeaching in its nature, in that it is sought to *215 discredit the testimony of prosecutrix as to her want of consent and impeach her character for chastity. Such evidence was not admissible as original or primary evidence for the purpose of impeaching prosecutrix’s character for chastity, as that could not be done in this manner, but only by proving her general bad reputation for virtue. Nor was it original or primary evidence to show want of consent' in that it would necesarily fail to do so. The most that can be claimed for it is that it tended to negative resistance and want of consent. In the case of Wilson v. State, 17 Tex. Crim. Rep., 537, this court, speaking through Presiding Judge White, said: “As to the newly-discovered evidence claimed in the defendant’s motion for a new trial, suffice it to say that no amount of evidence as to the prosecutrix’s want of chastity should overcome proof of the fact that she was ravished by force, as shown by the violence or marks of violence upon her * * * person * * * . Rape may be committed upon the most notorious prostitute, and if the physical facts and personal violence are proven, it were worse than idle to attempt to rebut them simply by proof of want of chastity.” They also charged that since the trial, they had discovered an important witness in the person of Dónese Davis. This witness testified upon the hearing of the motion for a new trial that he lived in the same community with appellants and had informed Jeff Hughes of what he saw and knew, but he was not summoned as a witness. Under the circumstances, his testimony could not be newly discovered. In their motion for a new trial, appellants assert that the jury, in arriving at their verdict, took into consideration comments and criticisms which might be made by the public in case they acquitted appellants. There is but one juror who testified that it was mentioned by anyone in the jury room. None of the others testified to having heard such a remark. This juror testified that he was for acquittal but was anxious to go home, which prompted him to agree to a verdict of guilty. However, we note that when the verdict was received, the jury was polled and each juror stated that such was his verdict. It occurs to us that this was an attempt on the part of the juror to impeach his verdict, which is not permissible. The many other matters complained of by appellants have been carefully examined by us and are deemed to be without merit. No error of a reversible nature appearing, the judgment of the trial court is affirmed. *216 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.