207 S.W. 520 | Tex. Crim. App. | 1918
Lead Opinion
Appellant was convicted of rape on a girl under fifteen years of age, the facts showing that she was between thirteen and fourteen years of age.
There is a very lengthy bill of exceptions found in the record covering nearly forty pages. The length of this bill is explained on the theory that the matter could not be made manifest to this court except by setting out all of the matters as they occurred with reference to the prosecuting witness. Before being asked with reference to the facts of the alleged rape, the district attorney and his associate were permitted to examine and cross-examine her mainly in the absence of the jury with reference to her testimony given before a court of inquiry. The court in his qualification of the bill anticipated that she would not testify on the trial before the jury as she had done before the court of inquiry, and also as it was claimed she did before a grand jury in Donley County. The examination was rigid. The girl stated while being examined that her testimony before the court of inquiry was not true, and that she had been frightened into making it by the prosecuting officers and other officers who were present, and that the parties who took down the statement wrote many things into the statement which she did not state and which were not true, and that she was badly frightened. This examination on the final trial lasted for a part of two days, if not nearly all of two days. She was threatened with prosecution for perjury, and was reminded of the fact by the court that he had power to inflict the death penalty, and that he had just sent one woman to the penitentiary for twenty years, and that the prosecuting witness herself could be sent for perjury, and the district attorney in her presence threatened to prepare a charge of perjury against her. The court acted upon the theory that she was not telling the truth if she failed or refused to repeat her testimony as given before the court of inquiry, and that he had authority as a court to require her to testify before the jury as she had testified before the court of inquiry. After committing her to custody over night and the subsequent threat to send her to jail she testified in accordance with their wishes, but before and after so stating she denied the truth of it. She made statements to her mother directly after the examination by the court of inquiry, that she had been threatened in making her statement, and that they were not true, and was chided by her mother for telling a story. She stated they had "scared" her. She also made another statement which is shown in the record under oath denying appellant's guilt, or that he had had intercourse with her. The testimony introduced by the defendant strongly supports the theory that he had not had intercourse *379 with her. It is uncontroverted both by prosecutrix and her mother that she had her monthly sickness, — menstrual discharge, and "was flooding at the time" of the alleged occurrence, and her "wrappings" were not disturbed. The city jailer and county jailer also testified to the fact that appellant was almost immediately arrested; that the clothing worn by appellant on the night of the supposed rape had not been changed at the time of his arrest, and had no blood upon them, which would have occurred had he had intercourse with the girl under the circumstances. These matters are briefly stated. The reporter will include in the report of the case a full and complete copy of the bill of exceptions. A reversal of the judgment, however, is based upon the action and conduct of the court, and the district attorney and prosecuting officer, and the conduct of the sheriff as well as the examination of the girl indicating that she was compelled to testify under threats and coercion. A discussion of the case is not further indulged as it is a case so nearly within Hamilton v. State, 68 Tex.Crim. Rep., it is unnecessary. The facts are similar, and the conduct in connection with this witness analogous to that in the Hamilton case. That case was reversed and for the same reason this judgment is ordered reversed.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Dissenting Opinion
Appellant, a young man twenty-one years old, was convicted of the rape of Ola Fincher, a girl just over thirteen and one-half years of age. His punishment was assessed at five years in the penitentiary — the lowest prescribed by law.
Appellant's sole complaint was to the action of the court in his endeavor to have the witness Ola Fincher to testify to the "truth, the whole truth and nothing but the truth" as she had sworn to do. No complaint was made of anything which occurred before the jury. All that which was complained of was before the court only, while the jury was retired in the custody of a proper officer. The jury did not hear and were not aware at the time, of anything which occurred with reference to said witness while before the court alone.
His two bills on this matter are very lengthy, more than forty typewritten pages. They contain the stenographer's verbatim report of all that was said and done to, and by, the witness in this examination of her in the absence of the jury. It is out of the question to give them in full in this opinion. The judge qualified each of them before approving them, in a lengthy qualification. The qualification was in accordance with, and borne out by, the record and facts. Appellant accepted the bills as qualified and under all the authorities is bound thereby.
In no instance when he made an objection, or took an exception was any reason or cause assigned for his mere objection or exception. After stating in full in his bills all that was said and done, he says: "To all *380 of which proceedings so had as above set out, the defendant then and there in open court duly excepted." No reason or ground of exception is in any way stated.
The facts of the case as shown by the record, together with the substance of the bills and the qualification thereof will be given. In connection therewith, the law applicable thereto will be stated.
Each witness before testifying must and does solemnly swear that the testimony he gives in the cause pending before the court "shall be the truth, the whole truth and nothing but the truth, so help me God." (Sec. 988, White's Ann. C.C.P.) This witness took that oath. The trial judge in this instance, as this record unquestionably shows, undertook in a proper way to have her comply with her oath. He did nothing more than that.
This court, through Presiding Judge White, in Cox v. State, 8 Texas Crim. App., 254, said: "True, a judge, technically speaking, may not be a representative of the State in prosecuting parties charged with crime; but he is nevertheless an officer of the State charged with the high and responsible duty of seeing that the law is faithfully administered. . . . Holding the `scales of justice equally balanced,' and supposed to be far removed from the influences of interest, prejudice, and passion, he is expected to guard with equal jealousy the respective rights both of the State and the accused."
Our Supreme Court in Waters-Pierce Oil Co. v. State, 106 S.W. Rep., 326, held and quoted 8 Am. Eng. Ency. of Law, 28: "Every regularly constituted court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction."
In Holdman v. Mayor,
In 3 Ency of Ev., p. 494, it is said: "A prevarication or an evasive answer on the part of a witness is considered equivalent to the refusal of the witness to testify."
On page 485 it is said: "When before the court a witness may be compelled to answer any lawful question. . . ." And again on page 475 it is said: "The power to compel a witness to answer lawful questions is inherent to all courts of record."
In 1 Thompson on Trials, section 354, it is said: "The manner of examining a witness is largely within the discretion of the court before whom the witness is produced, and that discretion must be governed in a great measure by the knowledge of the character of the witness and from his demeanor during his examination." In section 355 it is said: "A judge presiding upon the trial of the case is more than a mere moderator between contending parties. He is charged with the grave duty of maintaining truth and preventing wrong and to this end *381 has a large discretion which, if exercised without abuse, will not be error."
In 5 Jones on Ev., section 800, it is said: "Contempt of court involves two ideas — disregard of the power of the court and disregard of its authority. `Disregard of power, in that lawful orders have not been obeyed; and disregard of authority, in that its jurisdiction to declare the law and ascertain and adjudicate rights of the parties is hindered, prevented or set at naught. Such conduct is an offense against the court as an organ of public justice, and may be rightfully punished on summary conviction.' . . . It is enough if the witness' conduct tends to bring the authority of the law and of the court engaged in the administration of the law into disrespect or disregard. It has never been doubted that a refusal to testify on the part of a witness or to give evidence on relevant questions is contempt. And the matter is not mended by a refusal obviously wilful to give intelligent, connected and reasonable answers to questions fairly calling for the same." Again: "The witness may not trifle with the court by pretending nominally to answer, but in reality to cloak a refusal. Prevarication by a witness has the same effect upon the administration of justice as a refusal to answer. To the same effect it puts the witness in the position of standing out against the authority of the court, and thwarts the court in its efforts and purpose of doing justice between the parties. It is contumacy. It is direct contempt of the authority of the court."
In this instance the witness Ola Fincher was quite an intelligent girl, just past thirteen and one-half years of age and in the seventh grade in the public schools. On the night of July 7th appellant and another young man, Wesley Von Rosenberg, picked up on the streets of Amarillo, when they were going to their homes, said Ola and another young girl about fourteen years old, Irene Tucker, in their automobile, took them out in the country several miles and kept them until just about daylight the next morning, when they took them back to Amarillo, put them in a hotel, where they remained until about 9 o'clock that day, when they went to their homes. Very soon thereafter, the Tucker girl, with her mother, before she could be subpoenaed, was run, or ran, out of this State and then took up their abode in another State. The State could not obtain her as a witness in this trial. Ola and her father and mother were very much opposed to the prosecution of appellant, and she admitted on the stand that she did not want him punished. She and her mother and father were very hostile to the State, and both of said girls and their fathers and mothers were unfriendly to the prosecution and were doing everything within their power to prevent a prosecution.
The next day, after Ola returned to her home and before she had talked the matter over with anyone, and before she had been "fixed" or tampered with by anyone, the district attorney, county attorney and sheriff heard of the matter, and the sheriff took her, it seems with the consent of her parents, to the courthouse in Amarillo before the justice *382 of the peace and there was had an examining trial, to find out the facts as to what said young men had done to said two young girls when they had them out all night on the night of July 7th. Ola was duly sworn by the justice of the peace. She testified fully. Her testimony was taken down in writing, and she signed it and swore to it before the justice of the peace.
In this proceeding before the district judge, in the absence of the jury, her written, signed and sworn testimony before the justice of the peace was produced and exhibited to her. She admitted that she had signed and sworn to it. She then read it over herself. It was also then read over to her by the district attorney.
In this sworn testimony she stated her age, residence, the time she had gone to town on the night of July 7th, all she did, the places she went, with whom she was and a good deal of detail at that time unnecessary to state here; and then she told of appellant and Von Rosenberg picking her and Irene up in their automobile and taking them out into the country, telling the road they went, where they stopped, about how long they stayed there, when they returned and all about it. Therein she swore that Von Rosenberg and Irene sat on the front seat and she and appellant on the back seat in the car. That they went out some miles when the car was stopped. That when they first stopped appellant was asleep with his head in her lap, but she woke him up. She swore: "It was then when Von Rosenberg had intercourse with Irene there on the front seat of the car. Irene was lying down across the front of the seat on her back and Von Rosenberg was lying on top of her with his face towards her face, . . . he was going up and down on her." That they then drove the car to another point about a mile and stopped again by a haystack, and that Von Rosenberg and Irene went to the haystack. She swore: "Before Von Rosenberg and Irene went to the haystack, Buzz (appellant) Venable had his hand on my person up under my dress. They went to the haystack. Buzz (appellant) kept asking me to have intercourse with him and I told him, no, I was sick. He kept on and pushed me over in the back seat of the car. After he pushed me over he pulled up my dress. He took his pants clear down. After he took his pants down he had intercourse with me. I know what intercourse is. No officer of the court has told me what `intercourse is.' I know what intercourse means. Intercourse means when a man takes his penis and puts it into the private parts of a woman. I know what you mean when you say private female organs. He took his penis and put it in my private female organ. His male organ penetrated my female organ. After he had penetrated my female organ his body went up and down and I could feel his male organ within my private female organ. I could feel his organ inside of me. He went up and down on me a short time; that is, from one to two minutes, I would think. The get (He then) got off of me. I was in the back seat lying down and he was on top of me, between my legs. It hurt me some when his penis entered my female organ. I suffered *383 some pain from the act. I told him that it hurt me. The hurt was the greatest at the opening of my female organ. I told him that it was hurting me and he got up; however, his male member went clear on into the inside of my female organ. He then got up. We got up and walked out to the barbed wire fence. We looked over the barb wire fence and Von Rosenberg was on top of Irene, she was lying on her back. I could see her naked white limbs. Von Rosenberg was on top going up and down. It was just a few feet away. Probably about twenty feet away. I saw a car coming and I said, `Come on quick?' They jumped up and got in the car and we turned around and passed the car at a rate of about fifty miles per hour." She further testified where they then went, where they stopped and that the two men got a quilt and then they went back out into the country to Cliffside. She swore: "Just before we got to Cliffside Buzz (appellant) wanted Irene to get up in the seat with him and she got back there with Buzz and I got up in front with Von Rosenberg. We rode that way until we got about two miles beyond Cliffside and Von Rosenberg put the quilt down on the ground under a shade tree, and the car was about twenty feet away. Von Rosenberg said to me to come out there and sit with him on the quilt and I did so. Buzz and Irene stayed in the car. They did not do anything for about fifteen minutes. Irene lay down on her back and Buzz got on top of her and they were going up and down, that is, Buzz was going up and down on Irene. He was on Irene about five minutes. After they finished Buzz got up and pulled up his pants and buttoned them up. I did see them. There was nothing to obstruct my view in seeing them have the act of intercourse." She denied having intercourse with Von Rosenberg and swore they did not stay out there very much longer but went back into Amarillo. That appellant gave Irene $2 and told them to go to the hotel, which they did. She further testified that her monthlies came on the Friday morning before. That she was well on Monday morning and took her cloth off that morning. That none of her clothes had blood on them. That the cloth was a white cotton cloth and did not have much blood on it, but at the time she testified it had been burned. She swore: "All that I have told here is the truth. I have told it willingly. I have told what has happened without being scared and not in response to set questions asked. You have only asked me for the truth."
The bills and the qualification thereof show further that when the State put the witness Ola Fincher on the stand that she testified to some of the preliminary facts leading up to where these four parties went, what they did and said until they led nearly up to the material fact of whether or not appellant had had sexual intercourse with her that night, but had not asked her as to that fact. The court says in his qualification that at this time "She was answering questions leading up to the main issues in a way which clearly indicated her leaning towards the defendant and which she admitted in the trial of the case. She was very much opposed to the prosecution and admitted on the *384 stand that she did not want the defendant punished. The atmosphere of the trial at that stage of the trial was the most unusual. The defendant was at that time and at all times until the retirement of the jury, and for the most part after the retirement of the jury, making signs, gestures and nodding his head and he was constantly looking at the witness as if he considered himself possessed of some occult power over her, reminding me of a cat undertaking to charm a bird, and at one time I had to ask the witness why she looked at the defendant before answering." The court further said that the district attorney was asking these preliminary questions which would have been irrelevant and immaterial except for the purpose of showing the jury the kind of witness she was in order to enable them to pass upon her credibility and to test her memory, when he asked her: "Do you remember Mr. Richey, the county attorney, at Clarendon?" She said that she did not and he asked her if she remembered telling the grand jury of Donley County something, which she answered in the affirmative. (The grand jury of Donley preferred the indictment herein.) She was then asked if that was the truth, when counsel for defendant objected because it was improper, irrelevant, immaterial and prejudicial; the court then said: "Mr. Sheriff, I wish you would retire the jury a few minutes." The jury did then retire out of the hearing of the court in charge of an officer. The appellant's attorney then said: "Your honor, we want a bill of exceptions to your honor's retiring the jury." The court: "Why, sure, that is all right, you can have your bill." Nothing further appears in the bill as to why appellant objected to the retiring of the jury. No reason for the objection is given and none is suggested.
The bill and record further show that after the jury retired the district attorney began examining the witness about her said sworn testimony in the examining trial before the justice of the peace. He read the whole of it to her. He asked her questions about her said sworn testimony which showed that she testified that on the morning of July 9th the sheriff went to her residence and took her to the courthouse when she appeared before the justice of the peace and gave that written, signed, sworn testimony. The whole trend of questions to her shows that the State's attorney and the court dealt with her in the most considerate way and gentlest manner, endeavoring, and only endeavoring, to get her to testify to the truth, and only to the truth, whatever it might be. She tried every way she could to avoid testifying to what she had so testified, signed and sworn to. She claimed not to remember some of the statements therein which she had signed and sworn to. The court then admonished her not to try to dodge around in her testimony and this "don't remember" business, and asked her if she had heard that it was an offense against the law to commit perjury. She said she did not know what he meant by that. He then explained it to her and told her that she could be punished for violating this law, and that it was a violation of the law for her not to tell the truth; that all he wanted her to do was to go on and tell the truth whatever *385 it might be. Then the examination of her by the district attorney proceeded with the same result from her as theretofore. The district attorney then asked her if she knew what the penalty was for swearing a falsehood. She said she did not understand what that meant. The court then read the perjury statute to her and stated the penalty and asked her if she knew there was a woman in jail at Amarillo, convicted and sent to the penitentiary for twenty years. She answered, "No, sir." Appellant's attorney then said: "We desire to take a bill of exception." The court replied: "You understand that you will get a full bill." Another of appellant's attorneys said: "I understand that your honor was going to give us a full bill." The court: "Certainly, if you get any advantage out of this just go to it." Attorney: "Well, we take an exception to that." The court: "Certainly, you have got an exception to everything." No reason or ground is stated why they made these objections at this time. The examination of the witness proceeded for a while and then the district attorney said to her: "Ola, you can either testify to the truth of the transaction or I will be perfectly frank with you, or be indicted for perjury. Now you can just go either route you want to go, now I want to give you a fair show and warning." One of appellant's attorneys then said: "We take a bill to that." And the court replied he would get his bill to everything. No reason is assigned why he said he would "take a bill to that." The examination of the witness proceeded as before. The indictment herein was preferred by the grand jury of Donley County on July 20th. The district attorney then asked her if she did not tell the grand jury of Donley County, after being duly sworn, that her said testimony before the examining court was the truth. (Her sworn testimony taken before the examining court in connection with her then oral testimony, was used before the grand jury.) She answered that she did and that she told them that appellant had had sexual intercourse with her as stated therein, but when then asked if that was not the truth she said, "No, sir." The examination still proceeded along the same lines. When the district attorney failed to get her to testify what he believed was the truth and what her sworn testimony before the justice of the peace showed to be the truth, he announced to the court that he would file a complaint against her. The court thereupon suggested that another one of the attorneys for the State should examine her. And he did so at some length in the same considerate and gentlest manner, with a like result, she then claiming that she did not know what certain words in her said testimony meant. The court thereupon examined her and asked her to point out to him what words in it she did not understand. And her written testimony was then handed to her. She read the first page and stated upon inquiry of the court if she found anything on the first page she did not understand, that she did not. She then read on and she pointed out the word "intercourse" to the judge as one word she did not understand; and then another, "penetrated" and then *386 another, "penis"; and another, "female organ"; and then she told him she understood all the rest. The examination in this same manner proceeded for some time. She was asked many times her understanding of these words and her answers and manner indicated that she was prevaricating, that she did know what these words meant, each and every one of them. Clearly, when the court and the attorneys could not induce her to swear what they believed was the truth about the matter and what evidently was the truth, which she knew, the district attorney sought to withdraw his announcement of ready and wanted to continue the case, but the court refused to let him do so and said he would keep the court open for a year if necessary. The court then had prepared, and the clerk to enter an order reciting that it appearing to the court that the witness had knowledge of material facts which she had testified to in the absence of the jury but which she refused to testify to in the presence of the jury and persisted in claiming not to remember, whereupon he adjudged her guilty of contempt of the court, and that she was attempting by such conduct to hold the court in contempt and without power and authority to compel truthful answers to fair questions, therefore he ordered that she be committed to the custody of the sheriff until she purged herself of contempt which she could do by giving answers to the questions in a truthful manner and at the time when the court was ready to hear the testimony. She thereupon late that evening was taken in charge by the sheriff and kept with him and his wife all night. The court adjourned until next morning. She was taken in charge by the sheriff; not placed in jail, but taken to his residence, treated in the most gentle manner; she slept in a bed in the same room in which he and his wife slept and he returned her to the court the next morning upon its opening. She was again placed upon the witness stand, still in the absence of the jury, when the district attorney proceeded to further examine her when she began the same tactics as the evening before, and repeatedly when asked questions would give no answer. The court again admonished her and asked her what was the trouble, why she would not talk. She made no answer. The court thereupon ordered the sheriff to take her to jail and told her he would hold the court open until she decided to talk. He then asked her if she did not understand that the court could pronounce the sentence of death, actually taking the life of a person, and asked her if she did not know that. She said, "Yes, sir." He told her that her sitting there obstinately was very much out of the line with the right to say the least of it and asked her if she wanted the jury brought back; and if she would then go ahead and tell, or if she would rather go to jail now, and asked her what she said about it. He then asked her: "What are you looking over there for?" One of appellant's attorneys stated: "I was waiting until your honor got through. I want to take a bill." The court asked the witness: "What do you say about it?" She said: "I would rather tell what I have to tell." And upon inquiry of the court she repeated that. The court again asked her if she wanted the jury *387 to be brought in and she replied it made no difference to her. The court then instructed the district attorney to question her, and said we will see. One of appellant's attorneys said: "I understand we have a bill to all the court's remarks." The court: "Oh, yes, sir." The attorney: "Especially the threat to send her to the penitentiary and the threat of death." The court: "Sure, that is right, whatever was said (to the witness) you didn't understand me to say that I was threatening to put you to death, did you?" She answered, "Yes, sir." (On her cross-examination by appellant's attorney she swore the court corrected that at the time, and told her "he was not threatening to have me killed if I didn't tell this.") The court then explained to her that he meant no such thing. That what he meant to tell her was that the court was powerful enough to put a person to death — an offender against the law and that it would be a very weak court that could not compel a witness to give testimony. The attorney interrupted to say: "I am sure that she understood —" The court said: "Now, I don't care to hear from you further on this subject. You have got your exception all the way through and you have a record and I don't propose to hear anything further on this subject." And the attorney excepted to the court's "refusal to hear a bill of exception." The district attorney then proceeded to further examine the witness and upon his asking material questions she gave no answers. The court thereupon announced that the witness had not purged herself of contempt. She said she did not want to go to jail. The court: "Go right on to jail." She then protested repeatedly that she did not want to go to jail. The sheriff requested her to "come on, let's go," but she remained seated in the witness seat and refused to go with the sheriff. And she said she had not been treated fair enough. The court asked her in what way she had not been treated fair enough, and she began crying. The court told her when she got through crying she could go ahead and talk. After consuming the whole of the morning with the witness as indicated the court reconvened at 2 o'clock in the evening. The jury was placed in the box and the witness then testified substantially in accordance with her sworn testimony before the examining court.
In further qualification of appellant's bill, in addition to what is stated above, the court stated that this witness answered promptly questions propounded by appellant's attorneys but was neither prompt nor truthful, in his opinion, in answering the questions propounded by the State's counsel.
In one of appellant's bills it is alleged that late the first evening, when the court ordered the sheriff to take charge of the witness and to let the sheriff of Donley County, who was present when she testified in said examining trial and who was then under the rule, talk to the witness. Appellant then sought to have his attorneys present at this conversation but the court refused to permit them to be present. He excepted to the action of the court in refusing to permit his attorneys to be present at the conversation between these two witnesses, but assigned *388 no reason. He did not object to the witnesses having a conversation, nor to the action of the court in permitting it. The bill in no way shows what the conversation was. The court then further says: "Her attitude was so contemptuous that the court remanded her to the custody of the sheriff, who kept her at his home over night, and under these circumstances and with such influences working the judge of this court felt and still feels that it was proper to protect the court's jurisdiction and that it would not have been protected if the defendant and his counsel had then had the opportunity of discussing the case with her. In my opinion the slightest encouragement which might have been possible from the mere fact that counsel for defendant be accorded the right at that stage of the proceeding to discuss the matter with her would in the opinion of the judge have thwarted the purpose of the law, to compel witnesses to respect their oath and testify truthfully to facts within their knowledge. But before the cross-examination of the witness the court did inform defendant's counsel that it was their privilege now to talk with the witness and they availed themselves of the opportunity; the court taking a recess and giving them the opportunity and the jury not knowing the purpose for which the recess was taken. . . . The jury would have had no reason for knowing what was transpiring in their absence in my opinion, and I am not aware and have not been informed that they did know what was transpiring in their absence, and when they returned into court the judge merely said to the witness Ola Fincher: `Do you feel well enough or able now to testify?' And she answered that she didn't feel so very good, and the district attorney then began propounding questions to her. Nothing was mentioned in the direct examination by the district attorney relative to what transpired in the absence of the jury and when defendant's counsel began cross-examining her they undertook to and did develop what they considered important to them pertaining to the proceedings had in the absence of the jury. Contempt proceedings against the defendant were initiated after the trial and while the court had no doubt, and so stated to the defendant, of his guilt, yet the defendant broke down in that proceeding and with tears in his eyes said that he did not intend any contempt of court by the signs he was making and did not know he was doing anything in the trial to bring himself in contempt; and he was a young man about twenty-one years of age, so he was discharged for the reason that it was thought best that the court under those circumstances might perhaps be merciful without injury to the defendant or the court's dignity."
After she had completed her testimony before the jury, on her direct examination and before the appellant undertook to cross her, as stated, the court announced to appellant's counsel that they could then interview her privately, which they did. When they placed her back on the stand for cross-examination, they then had her go over before the jury each and every item of what he claimed was improper before the judge *389 in the absence of the jury and asked her everything about all of those matters. So that in that way the appellant himself reproduced substantially all of the conduct of the court and of the district attorney and prosecuting attorney and everything that they thought would show to the jury her mistreatment and what caused her to ultimately tell the true facts of the case; and then they had her to testify in substance and effect and deny appellant had had sexual intercourse with her on said occasion. The State on redirect examination went over the matter again briefly with her and she said that he did have intercourse with her and that her testimony to that effect was true. This passed back and forth a time or two with the same result. Appellant's attorney asked her: if in finally testifying against appellant as she did it was "because you willingly want to give this jury the truth, or because you are scared." A. "Well, I admit to it, that I am scared." Q. "That is all." A. "I am telling the truth."
Upon the whole, whether or not her testimony against appellant to the effect that he did have sexual intercourse with her was a question of fact for the jury to pass upon. Taking the whole circumstances, no one could for a moment doubt her testimony when she swore he did have sexual intercourse with her. It is certain that he did, and that her testimony so stating was unquestionably true, and the jury believed her.
The action of the court in dealing with this witness from start to finish demonstrates that the court and the prosecuting attorneys had no other purpose or intention whatever than to induce this girl to testify to the truth and nothing but the truth; that their conduct towards her was most considerate and the manner towards her was no other than to induce her to tell the truth and nothing but the truth. The treatment of her was in no way harsh, overbearing or oppressive.
Neither can there be any question but that this girl was undertaking in every way conceivable, no doubt inspired by appellant himself or through him to testify falsely in his behalf and save him from the just punishment which his rape of her undoubtedly merited. The law and justice and right should not be permitted by the courts to be trampled under as it was attempted to be done by the witness and the appellant in this case. If such conduct by an accused and a witness doing everything possible to shield him could prevail then the power and authority of the court to administer justice, to ascertain and declare the truth and to execute and carry out the law would be a farce and a mockery. It was not tolerated by the courageous judge in this instance and should not have been. What he did was right. What he did was within his undoubted authority and what he ought to have done.
The only other complaint appellant has is to the refusal of a special charge which he requested. The court specially stated in his qualification to the appellant's bill what the appellant explained to him at the time and that he modified his charge to meet the exact question for *390 which the charge was asked and thereupon refused his. As explained, the bill presents no error.
The judgment should be affirmed, not reversed. I dissent.
