Cain v. State , 68 Tex. Crim. 507 ( 1913 )

Appellant was convicted of the offense of rape upon a girl under fifteen years of age and given the lowest penalty.

The Honorables L.J. Truett and Sam Neathery, the county attorney and assistant county attorney, respectively, of Collin County, have filed a brief for the State. Therein they vigorously contend that the judgment of conviction should not be set aside by this court, but the lower court and the verdict should be sustained, because there was no material error whatever in the trial and that there was no misconduct of the jury and that the evidence is amply sufficient to sustain the conviction. We have received material aid and assistance by the brief of the said county attorney and his assistant.

Although the statement of facts is somewhat lengthy, we have read all of it and studied it diligently and with care, and have reached the conclusion that not only is the evidence amply sufficient to sustain the verdict, but that the preponderance of the evidence on the material issues is decidedly in favor of the State and against the appellant. The contention of the Assistant Attorney General and of the appellant by his able attorneys, is based largely on the fact that the girl alleged to have been raped by appellant contradicted her testimony on the trial and was contradicted by the testimony of other witnesses and there was some testimony by the appellant tending to show that her general reputation for truth and veracity was not good. On the other hand the State introduced several witnesses who testified that her general reputation for truth and veracity was good. There is more or less testimony in the record impeaching the general reputation of the appellant himself and of some of his witnesses and some of those for the State. The ravished girl also herself testified and others testified to the fact that when this matter first came up she swore before the grand jury and the county attorney, and stated to others that the appellant was not guilty and had never had anything to do with her in the way of having sexual intercourse with her, but she also testified that her said sworn testimony before the grand jury and the county attorney and her statement to others was, at the time, untrue and that she was induced to so swear because of the fact that appellant's brother-in-law, who had also had sexual intercourse with her, who was also charged with rape upon her and whom she married within a very short time after appellant's brother-in-law was so accused and arrested for such crime, and because of the threats of appellant to her, in effect, that if she swore against him he would kill her and he would prove her out a liar and send her to the penitentiary. The record shows the testimony of several witnesses for the State, showing facts and circumstances strongly corroborating her wherein she testified that the appellant had sexual intercourse with her on a certain date and together with her testimony, making out a clear and satisfactory state of facts showing the guilt of the appellant. What we recently said in the case of Kearse v. State, from Fisher County, we quote as particularly applicable in this case:

"There is hardly any contested case that comes to this court but what there are contradictions in the testimony, and frequently a principal witness may contradict himself in material matters. In such cases when it is contended that the evidence is insufficient to sustain the verdict this court cannot legally take the place of the jury and determine whether or not it will believe any witness or witnesses and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury, and if so reverse the case on that account. The only question this court can determine is whether there is sufficient evidence, if believed by the jury, to sustain the conviction. This court passes upon that question as a question of law, which is all it can legally do under such circumstances.

"Our law expressly provides that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. This court cannot, therefore, take that question from the jury without usurping authority that was never given or intended to be given it. The jury, in a felony case, is made up of twelve fair, disinterested, impartial, unprejudiced, unbiased and competent jurors, selected from different portions of the county, each one of whom hears all the witnesses, looks them in the face when testifying, observes their manner and method of their examination by the respective attorneys, then hears the argument of the attorneys for each side, one side undertaking to break down the testimony of the witness and calling attention to every contradiction in the testimony of such witness and the contradiction by others of him, the other explaining such matters, and seeking to sustain such witness, then hear and take with them in their retirement the charge of the court; then the twelve men discuss and consider in private between themselves all such matters and after weighing it all and all the arguments against it and in support of it, come to the conclusion that the testimony of a certain witness or witnesses, although contradicted and although there are contradictions in the testimony of such witness, is true and they believe it. The jury is made up of men of different ages, from young to comparatively old men, and they pursue different occupations and businesses. With all these surroundings they are much more competent to arrive at the truth than are the judges of this court who must look solely to the testimony as written down on paper. It can not portray the manner, the looks and the deportment of the witness, nor the manner of his examination and cross examination by the attorneys. Besides this, the presiding judge hears and sees and observes all that the jury does in the trial of the case and he then sustains the verdict of the jury. Therefore, when the evidence taken in its favorable light sustains the verdict this court can not legally set it aside."

We will not undertake to give a summary of all the evidence. We will briefly give a statement of the effect only of some of it. In 1910 the appellant, his mother-in-law, Mrs. McDonald, and his brother-in-law, Walter McDonald, whose sister appellant married, and Velma Coalson and her family, lived in the same neighborhood in Collin County. Velma Coalson, or Velma McDonald, as was her name afterwards, was a country girl then only fourteen years of age, living with her parents who were tenant farmers, she working in the field with appellant and others as an ordinary hand hoeing cotton. In the summer of 1910, proceedings were begun in the courts in Collin County against said Walter McDonald and appellant, charging them respectively with rape of said girl Velma, charged to have been committed in the spring or early summer of 1910. Shortly prior to July 14, 1910, said Walter McDonald was arrested on said charge. In a few days after his arrest he married the girl. Of course, it is very apparent why he did so. The girl, on the trial, testified that prior to her marriage to said Walter McDonald, he, Walter McDonald, had had sexual intercourse with her, thereby showing that he was guilty as charged. She married Walter McDonald at the home of her parents on the night of July 14, 1910, about 7 or 8 o'clock. Appellant was present at this marriage. Sometime before noon of the following day, appellant was arrested, charged with this crime, the complaint therefor having been made against him at McKinney, the county seat, some distance from where he lived, the day before he was arrested. Shortly prior to the girl's said marriage, it seems, she had told her father that appellant as well as Walter McDonald, had had sexual intercourse with her. Of course, the State was not permitted to show what influences or pressure was brought to bear, if any, by her husband on her to induce her the next day to tell her father that appellant was not guilty and had had nothing to do with her in a sexual way. However, she did so tell her father the next day. Soon after her said marriage she also told her father that both her husband and appellant were innocent of the charges against them and then, for the first time, told him that a man by the name of Hogue Hawkins was the guilty man. It is very apparent from the whole record that her reason for then telling that her husband and appellant were innocent and Hawkins was guilty was to protect both her husband and her husband's brother-in-law from prosecution and conviction. Doubtless she then desired to protect both of these parties, her husband and appellant, and, in addition, was seriously threatened, as above stated, with death and with a penitentiary conviction, by appellant if she so swore against him, and she stated, in speaking to the constable Wilcoxson: "I told him that he (appellant) hadn't had his hands on me and they told me to tellit."

Among other things, the prosecutrix, Velma McDonald, testified on direct examination: "I am married and my husband's name is Walter McDonald. My name before I married was Velma Coalson. I married Walter McDonald on the 14th day of July, 1910. I am 16 years old now. I was 16 on the 6th of last February. I know John Cain — have known him about two years. * * * I am not the wife of John Cain and have never been the wife of John Cain. * * * I had known John Cain nearly a year prior to my marriage to Walter McDonald. * * * Before I married Walter McDonald I worked for John Cain and worked with him. I think I picked some cotton for him and I hoed some for him. * * * I hoed cotton for John Cain about a month or maybe two months before I married Walter McDonald. John Cain and I worked in the field at the same time. * * * The rows run north and west in the field there where I was working for him — I mean north and south. Bob Dillon's field joins that field on the south. There is a gulley there at the south end of that field where I worked with John Cain. Me and John went down there into that ditch and he had intercourse with me. That was before I married. It was about two months before. The cotton was about that high from the ground, but I don't know how many inches that is. It came to my shoe tops. He and I were laying down in the ditch and he was on top of me. I fixed my clothes. I had on drawers and I unbuttoned them and they were pulled down, but were not pulled off. He and I were down there in the ditch about fifteen or twenty minutes. His private parts entered my private parts. That was in Collin County, Texas. The way I came to go out there to the ditch with him he asked me to go out there with him. I told him, well, when he said that and there wasn't anything else said between us then. After we got out there he told me to undo my clothes. I do not remember anything else that was said. George Pollard and Lee Pollard and my sister were at work in the field at that time. Lee Pollard is a boy. My sister's name is Phoebe Coalson. George Pollard and Lee Pollard were half brothers of John Cain. George and Lee Pollard and my sister were up at the north end. He had had intercourse with me before that twice."

On cross-examination by appellant she testified: "I do not know what year I was born. * * * My sister was ten years old then. I do not know how old George Pollard was but he was about 18 — just about a grown man. Lee Pollard was about nine or ten years old. My mother was not there that day chopping. I talked to Billy Wilcoxson at our house one evening. I don't know when it was but it was after me and Walter married, about a week after we married. Billy Wilcoxson was the constable over there at Farmersville. * * * I did not tell Billy Wilcoxson that John Cain never put his hands on me and never touched me in his life and never had intercourse with me. I don't think I told him that before Walter McDonald and I married that Hogue Hawkins was the only man that ever had intercourse with me. I believe I did tell Billy Wilcoxson that. That was after Walter and I married that I told Billy Wilcoxson that Hogue Hawkins was the only man that ever had intercourse with me, that that was true. I did not tell him about Hogue leaving a rubber there on the floor in our house, and my mother did not tell him about it in my presence that I know of. I did see the rubber there. I don't know whether it had been used or not. I reckon Hogue had used it, but he didn't use it with me. * * * About two weeks after we were married I did tell him that Hogue Hawkins was the only man that ever had intercourse with me before I was married. That was not true and I did not just now say it was true. I thought you said John Cain. We have been talking about Hogue Hawkins a long time. * * * I told him that he hadn't had his hands on me, and THEY TOLD ME TO TELL IT. It was not true. * * * I went to George Brown and told him the same thing and swore it, and swore it before the grand jury. * * * You will have to speak plain — I don't understand them big words. I chopped for him some before that — I reckon about two weeks or maybe a month before that — in that same patch, and I chopped some for him after that. * * * I do not say now that John was the only man who ever had intercourse with me before I was married — Walter did too — that is my husband. * * * I do not know what made that gulley — it was just washed out. The banks were not very steep, but slanted. You could step from the ground down into the gulley but it took two steps to get down. * * * I don't know how long it took us to chop a row across that field — maybe half an hour and maybe not so long. * * * John and I worked faster than they did — we kept ahead of them most of the time. * * * We worked back and met them about the middle of the field. * * * Mrs. McDonald is his mother-in-law and she is my husband's mother."

On redirect examination by the State she testified: "The defendant is a married man and has two children. He married Nora McDonald, a sister of Walter McDonald, and Walter McDonald is the man that married me. John Cain told me that if I come here and swore against him he would kill me, and he said if I come out here and said he was into it he would prove me out a liar and send me to the pen. * * * What John Cain said to me was after I married Walter McDonald. He told me the next day after we were married, and then he told me four or five times after that."

On recross-examination by appellant, she testified: "One time he said that, was the day I was married and that was the first time. * * * He told me that time up at Mrs. McDonald's. The next time he told me was about two weeks after I was married. * * * The last he told me I reckon was about a month after I was married."

W.S. Coalson testified for the State: "The rows of cotton in John Cain's field run very near if not quite due north and south. * * * I should judge that the rows were between four and six hundred yards long. * * * If I mistake not, John Cain was arrested about the 15th day of August or of July, 1910, the first time. My daughter married the 14th day of July, 1910, and if I mistake not it was the next day that John was arrested. I have a Bible that shows the dates of the birth of my children on up to the baby one. Some time between the time my daughter was married and the time of the sitting of the grand jury John said something to me about the Bible. He came to my house one night and called my wife and I out behind the kitchen and told us he wanted to talk to us. We got out there and he asked us a question, says, Have you got a Bible? And I told him we did, and he says have you got that girl's age wrote down in the Bible in the family record, and me or my wife one or the other spoke up, I don't remember which one exactly, and said we had. And he says, Well, by God, you have got to destroy that Bible, and I told him we would never do it, and he says, Yes, but by God you have got it to do. He says I will be damned if it ain't got to be destroyed, and he says you have got to forget that girl's age, and my wife spoke up and says I will never do that, and he says, By God you must do, it has to be done. You must destroy the Bible and forget her age till this thing is settled, and then I don't give a damn how old she is. It was either right at the last of July or first of August. * * * I said he was arrested the day after my daughter was married. It was somewhere about the last of July or first of August, if I mistake not, that he come down there and told me to burn the Bible. That was after he was arrested. At that time his brother-in-law, Walter McDonald, was under a charge of having ravished my daughter. * * * He was arrested in the morning before noon — I guess somewhere between eight and eleven. * * * I think I told the officer not to take him — that he was not guilty."

Mrs. Coalson testified for the State: "My husband and I had a conversation with John Cain with regard to the Bible after Velma and Walter were married. * * * He asked us if we had her age down in the Bible, and I told him we did, or both of us told him. He said we must get shed of the Bible and forget her age till these trials were over."

Bob Dillon testified for the State: "I know John Cain and have known him about ever since I have been big enough to know who he was. I know Velma Coalson — Velma McDonald she now is. * * * I know where John Cain had a cotton crop in the summer of 1910 — it was right north of my crop. * * * I saw two people in the field along in cotton chopping time that I took to be John Cain and Velma Coalson. I was in my field and was something like from fifty to one hundred yards away. * * * They were in the south part of his field right close to my field. There was somebody else up in the north part of his field. There was some three or four up there. * * * The two down in the south end of John's field that I took to be John and Velma hoed out to the end it looked like to me and then disappeared out of my sight. They just disappeared out of my sight. There is a gulley at the south end of that field which I suppose is something like 5 feet deep and something like seven or eight feet across the top, maybe ten. * * * I did not notice how long they stayed disappeared."

M.J. Reynolds testified for the State: "Along in the fall of 1910 I had a conversation with John Cain. * * * He just asked me about Mr. Coalson's family, asked me did I believe they were loose, and I told him I didn't know whether they were or not. He asked me if I didn't believe Mr. Daniels was having a good time with that girl and I told him I didn't know whether he had or not, and he remarked that he had not had any better time than he had had. * * * Mr. Daniels was a young fellow that was staying there at Coalson's at work."

J.S. McCoy testified for the State: "Along in the summer of 1910, I had a conversation with John Cain, but I don't know exactly whether we were talking about Velma Coalson or not — we were talking about the family at that time. I couldn't state all the conversation but we were talking about the family, and the circumstance that happened, and I said why don't you go and compromise, give so much and get shed of the family, and he would give a hundred dollars to get shed of them, that is the Coalson family, and he would have Mrs. Mac to give a hundred dollars, if Hogue Hawkins would a hundred dollars to put them across the line. By Mrs. Mac I mean Mrs. McDonald. He said Mrs. McDonald. I don't know whether I suggested that I would go and see Hogue and get him to say what he would do about it, but I did go and see Hogue, and he said ``By granny, I don't owe nothing.' John Cain said in that conversation that he had been out a right smart of money but he had got his money's worth."

Appellant testified for himself as follows: "I remember the night that Walter McDonald married her — I think I went down there the night they were married. * * * I do not remember the day that Walter McDonald was first arrested on this charge, and do not remember how long it was before he married the girl — it was a few days."

B.C. Reynolds testified for the State: "I have known John Cain a long time * * * He told me that he had that transaction with Velma Coalson over there in the field fixed. Afterwards I spoke to him about it, and he told me he didn't mean that place — that he referred to the time there was a picnic down near Copeville."

Appellant testified denying specifically every incriminating fact against him. And as stated above, some of the State's witnesses were impeached by showing that they made different or contradictory statements and the general reputation and veracity of some of them is attacked. The State in the same way attacked the testimony of the appellant and some of his witnesses. The testimony of appellant and his witnesses would have authorized the jury to have acquitted him, but all of this was for the jury and the lower court. They did not believe him and his witnesses but evidently did believe the prosecutrix and the other State's witnesses.

By one of appellant's bills of exception he complained that the court erred in admitting certain evidence of B.C. Reynolds. The bill shows the matter substantially in this way: Said Reynolds had testified for the State on direct examination that appellant had told him that he, appellant, had the case against him beat wherein he was charged with the rape of the prosecutrix Velma Coalson in defendant's cotton patch and that afterwards when he spoke to him about it, appellant told him that he was mistaken about the case in the cotton patch being fixed, that he meant that he had the case fixed which occurred at the picnic over at Copeville. It had been shown by the evidence that the prosecutrix had accused Hogue Hawkins of being the one that was guilty of rape upon her. Thereupon, appellant asked the witness Reynolds, fixing the time and place, if he did not tell Bob Dillon, one of the State's witnesses, that Hogue Hawkins would give said Dillon or anyone else $20 to testify that he saw appellant going to the prosecutrix. The witness denied such conservation with Dillon. Thereupon, appellant introduced said Dillon, who testified that at said time and place said Reynolds did tell him that said Hawkins said he would give anyone $20 who would testify that he saw appellant going to prosecutrix and that Dillon replied that he would not swear it for $500. Thereupon, the State recalled the witness Reynolds and over appellant's objection that it was hearsay and not embraced in a predicate laid to impeach the witness and involved a conversation different from that inquired about, was not in rebuttal; that the conversation he did have with said Dillon upon the case inquired about was "What I said to Bob Dillon about this $20 was this — I remarked to Bob Dillon, Bob, if you had been here about fifteen minutes sooner you could have made $20, that John Cain had offered $20 to anybody that would say they had ever seen him and that girl together, Velma Coalson." The court did not commit any error in permitting the witness Reynolds to testify as he did. Barber v. State, 62 Tex. Crim. 453; 69 S.W. 515; Turner v. State, 51 S.W. Rep., 366; Streight v. State, 138 S.W. Rep., 742; Jackson v. State,33 Tex. Crim. 286; 1 Whart. Crim. Ev. (10 Ed.), p. 998, note 5, and p. 1000, notes 18, 19 and 20, where a large number of cases are collated, holding that such explanation and testimony by a witness who is sought to be impeached is clearly admissible. It would certainly be a harsh rule that would permit either side to ask a witness if he had not made a certain statement to a certain party, when the witness would deny it, and then such impeaching witness would state that he had so testified, — to refuse to permit the witness sought to be impeached to make a statement of what he did then say, although it was different from what the impeaching witness claimed he did say. It is not only just and fair to the witness that he should be permitted to state what he did say, but certainly the truth of the matter could not be arrived at, unless he was permitted to state what he did say to the impeaching witness.

Appellant's next complaint is his second ground of his amended motion for new trial which is: "Because the court did not charge (a) on impeaching testimony generally, and (b) did not limit the effect of the testimony of B.C. Reynolds, as same is set out in paragraph No. 1 above of this motion, (c) because the court did not charge on impeaching testimony as to Velma Coalson, given before the grand jury, to the effect that the reason she had sworn that John Cain had intercourse with her was because she thought it would make it lighter on Walter McDonald." This assignment, in our opinion, is entirely too general to authorize or require this court to pass thereon. Bird v. State, recently decided, and other cases therein cited; Ryan v. State, 64 Tex.Crim. Rep.; 142 S.W. Rep., 878; Berg v. State, 64 Tex.Crim. Rep.; 142 S.W. Rep., 884. Even if we could consider the questions attempted to be raised in this assignment they present no error whatever. As to the claim that the court should have, by his charge, limited the effect of the impeaching testimony of B.C. Reynolds, it is the settled law of this State that where impeaching testimony can only be used by the jury to impeach a witness it is not necessary to charge on the subject at all. See Sub-division 3, Sec. 873, Branch's Criminal Law, where he collates several of the decisions of this court to that effect. The impeaching testimony of Dillon, nor that of Reynolds in explanation of what he did say to Dillon, could not, in any way, have been used by the jury as incriminating testimony of the appellant. On the contrary all of it, if it had any effect at all, would have been in his favor and not against him. The fact that the complaining witness Velma Coalson (McDonald) testified at first before the grand jury and elsewhere that appellant had nothing to do with her, and afterwards testified on this trial that he had sexual intercourse with her, in no event required the court to charge on impeaching testimony by her. It was all her own testimony and if it impeached her at all it was in favor of the appellant and in no way against him.

Neither did the court err in permitting the State on cross-examination of Jeffcoats, one of appellant's witnesses, to show his bias and prejudice, if so, in favor of appellant and against the State. He had given material testimony in favor of appellant and against the State and the State had the right to show his bias and prejudice in favor of appellant, by showing that at midnight, without any charge having been made to him against the said Velma Coalson, and without having had any subœna issued for her, that he had an attachment issued for her and brought her from her home at midnight for the purpose of probing her in favor of her said husband from whom she had then separated. Pope v. State, 65 Tex.Crim. Rep.; 143 S.W. Rep., 611; Earles v. State, 64 Tex.Crim. Rep.; 142 S.W. Rep., 1181, and cases therein cited.

Neither did the court err, for the same reason and under the same authority, in permitting the State to show by M.J. Reynolds that he had no ill-will or bias against appellant, when appellant attempted in examination of him to show that he did, by showing that appellant had been arrested and tried and that said witness had testified in the case wherein appellant had theretofore been charged with illegally selling or giving intoxicating liquors to said witness' minor son.

There is no reversible error shown in appellant's complaint that the court refused to permit his witness Wilcoxson to testify that after he arrested appellant on July 15, 1910, that appellant did not see the prosecutrix, Velma Coalson (McDonald) that he knewof. It might not have been improper for the court to have permitted the witness to so state. It is clearly shown that the witness did substantially testify to the same thing or even a stronger statement of that fact for he testified that after he arrested him that day appellant talked to no woman except the witness' wife, and that he had appellant with him continuously from the time he arrested him till he turned him over to another officer and that during the time he had him he, the witness, did not see said Velma Coalson (McDonald) and that said appellant did not talk to anyone that he knew of.

Appellant claims in his amended motion for a new trial that the court erred in refusing to give his requested charge No. 1, simply and solely quoting the charge itself, without giving any reason or statement of why it should have been given. This is too general to require the court to consider the question. However, even if we could consider it, it presents no error, for the court specifically, in his charge, covered the same point and the same ground that this requested charge covered, which was in effect, limiting the jury to the consideration of the one sole act of intercourse by appellant with the prosecuting witness to the time and place of when she had testified it occurred in the ditch or ravine in appellant's cotton patch, and instructed the jury that if they did not find that the act of intercourse, if any, occurred at that time and place to find the appellant not guilty.

The court did not err in permitting the prosecutrix to testify to other acts of intercourse that appellant had with her other than the one with which he was charged in the indictment and to which the court had limited the finding of the jury. Appellant cites, in support of his contention on this point the cases of Henard v. State, 47 Tex.Crim. Rep., 82 S.W. Rep., 656; Smith v. State, 79 S.W. Rep., 556; Smith v. State, 73 S.W. Rep., 401; Hackney v. State, 74 S.W. Rep., 554, which have been specifically overruled by this court in Battles v. State,63 Tex. Crim. 161, 140 S.W. Rep., 783. See also Smith v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 1173; Lott v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 544; Clardy v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 568. Where evidence of other acts are held admissible.

The indictment in this case charged appellant with ravishing Velma Coalson on or about June 4, 1910. The evidence and all the papers involved in the whole record show, without contradiction and without contest, that at the time of the alleged act upon her, her name was Velma Coalson, but that soon after the alleged act, she married the brother-in-law of appellant, Walter McDonald, and thereupon her name became, as is customary in this country, Velma McDonald. There isn't a particle of doubt shown by the record in any way as to the identity of the party upon whom the alleged assault occurred, whether she was called Velma Coalson, or Velma McDonald, and she is as frequently called by one name as by the other by the witnesses throughout the whole trial of the case. Appellant attempts to raise the question by first requesting a charge and following it up by a motion for a new trial and in arrest of judgment, claiming that there is a fatal variance in that the indictment alleges that her name was Velma Coalson, whereas, the proof shows that her real name at the time of the trial and at the time of the indictment was found, — not at the time of the alleged assault, — was Velma McDonald. No possible injury has occurred to appellant by reason of the facts just stated and there is no possible question of the identity of the person upon whom he is charged to have made the assault whether she be called Velma Coalson or Velma McDonald and the court committed no error in refusing a new trial on that ground and appellant's charge on that subject.

Neither did the court commit any error in submitting the case to the jury for a finding to require them to find that the prosecutrix was under the age of fifteen years at the time of the alleged rape upon her, because, as contended by appellant, her age was not contested. The sexual intercourse between appellant and prosecutrix having occurred before she was fifteen years of age, with her consent, appellant would not have been guilty of the offense of rape, unless the proof showed and the jury found that she was under fifteen years of age at the time of the act.

Neither did the court err in permitting the witness Hogue Hawkins to testify that he had never had sexual intercourse with the prosecutrix. One of appellant's contentions on the trial was that he had not had sexual intercourse with her, but his attempt all the time, was to show that she had accused said Hawkins and that Hawkins was the person who had had sexual intercourse with her.

The 6th subdivision of the court's charge in limiting the finding of the jury against appellant alone to the act of sexual intercourse, alleged to have occurred between appellant and said prosecutrix in a ditch in appellant's field, and charging them that they could not consider any other acts between the parties, even if they should believe from the evidence that the evidence, beyond a reasonable doubt showed any other act, was evidently given in response to appellant's special charges to the same effect on the same subject and the charge, as given, was not on the weight of the testimony and is not subject to the criticism made thereof by appellant.

There are several grounds in appellant's motion for new trial attacking the verdict of the jury, because, as stated, as example, in the 13th ground, "the jury discussed matters not in evidence before them and which had been excluded by the court." And 14th, "the jury received other and additional evidence prejudicial to defendant from other sources after they retired." 15th, "the jury discussed the fact as to whether Walter McDonald married prosecutrix with a view of helping defendant defeat his case and to beat his, McDonald's case." and some other like grounds set up in the motion for new trial in the court below. The appellant, by his able attorneys, has presented a forcible and strong brief of some twenty pages, presenting all of the matters that we have discussed above, but nowhere and in no way do they in their brief claim the case should be reversed because of the claimed illegal action of the jury.

There is a bill in the record which shows that the court below in hearing the motion for new trial had all the jurors who tried the case before him and they were sworn and testified fully. Their evidence embraces ten typewritteen pages of the record. We have carefully gone over it all and we fail to find anything in the testimony of anyone of the jurors that would have justified the lower court in granting a new trial or this court in reversing this case. The court below heard all this evidence, saw these jurors and heard them when they testified and their manner of testifying and what they showed they considered and did not consider in their retirement when considering the case for making their verdict. He found nothing whatever that would authorize or require him to grant a new trial on that account. Appellant's able attorneys evidently must have abandoned any such ground, else they would have presented and urged it in their brief and attempted to show wherein it required the court to grant a new trial or this court to reverse. We have found nothing. On the contrary, the evidence of these jurors satisfies us that they and neither of them were guilty of any such misconduct whatever as would require or authorize this court to reverse. There being no error the judgment will be affirmed.

Affirmed.

[Rehearing denied February 5, 1913. — Reporter.]