Full opinion text
PRENDERGAST, PeesidiNG Judge. Appellant was indicted for incest with his niece, Cassie Dunn, the daughter of his sister, was found guilty and assessed the highest punishment. The State introduced said Cassie Dunn as its first witness. She testified on direct examination to her relationship to appellant as alleged in the indictment; that she was twenty years old June 18, 1914; that for the four or five years preceding this trial, which occurred in February, 1915, she had been living with and making her home with appellant; that when she first went to living with him his family consisted of himself and two sons, then nearly grown; that about two years after she went to live with appellant, her sister Fannie, two years younger than she, also arrived there and thereafter made her home also with her uncle; that both appellant’s said sons married, one more than a year before this offense is alleged to have been committed and the other some time before that, and that both of them thereafter ceased to live with their father but had their own homes and lived at their own homes in the same community; that when these two sons of appellant thus married and removed from appellant’s and established their own homes, she, appellant and Fannie constituted the family; that after Fannie arrived at appellant’s and made that her home, she, Cassie,.did the housekeeping, cooking, washing and milking and that when Fannie was there Fannie assisted her in the discharge of these duties; that she and Fannie had five other uncles living in the same -community of appellant, appellant’s brothers, whom Fannie visited from the time of her arrival at appellant’s until after this offense was committed; that she would sometimes go and stay a week or two at a time, though not very often, but she would go and stay with them whenever she wanted to.' “When Fannie would go away that would leave Uncle Alfred (appellant) and myself alone. When Fannie was goné I did the milking and cooking; I kept house and made up the beds, etc.” That when Fannie was there she assisted Cassie in these duties; that during all that time she, Cassie, had no sweethearts or beaux and kept company with none such; that she occasionally went to parties, gatherings, singings and things of that kind but not often; that she went more before appellant’s two sons were married, they taking her; that whenever she went, either appellant or one of the sons would carry her; that appellant carried her to church but did not carry her to parties and occasionally took her to town; that she left appellant’s, who lived in Coryell County near Turnersville, and went to. her father’s home, who is shown to have lived in Clyde, in Callahan County, on June 19, 1914; that “Uncle Alfred (appellant) treated me just like he would one of his own children all the time I lived there. He treated me right, — just like he would his own girl. Anything I wanted I got it, dresses or anything else. ... I love every one of my uncles. Yes, I expect I love Uncle Alfred better than any of the balance of my uncles. I have loved him all the time. ... I was pregnant when I went home in June, 1914. I had been home about a month before my people found out that I was pregnant. Dr. Bailey is the man that told them about my being pregnant. I was sick and we called 'in Dr. Bailey to wait on me, and he told them what was the matter with me. I have a child now. It was born the 29th of October." The above is substantially and fully everything this girl testified on her said direct examination. It will be seen therefrom that unquestionably her testimony was favorable to the State and in no way unfavorable thereto; that it showed practically that appellant had the opportunity and he alone had the opportunity to have had sexual intercourse with this girl; that someone did, about the latter part of January, 1914, is unquestionably established, not only by her testimony, but by all the other testimony in the ease. Immediately upon her being turned over to the appellant for cross-examination he had her, the very first thing, to testify as follows: “Henry Dollins is the father of my child. My' uncle never did have any illicit intercourse with me in any 'way. Never did ask me to. Never asked me to yield to him in any way. During the entire time that I lived with my uncle he never did undertake or try to get me to do anything that was wrong. I have just told you that Henry Dollins was the first person that ever had. intercourse with me. The first time Henry ever had intercourse with me was at Hazel Ford’s. Hazel Ford lived about a mile from where my uncle Alfred lived. I recall the fact that Hazel Ford and his wife went to Meridian in January, 1914." In view of several questions raised by appellant’s bills of exceptions, we deem it proper to here state what the trial judge said, and sometimes repeatedly said, in explanation and qualification of appellant’s said several bills. In one he said: “It is further apparent from the whole testimony that a conspiracy existed between the defendant and the prosecuting witness (Cassie Dunn) not only to commit the crime of incest, but.to go further and suppress knowledge' that the child that was to be and in fact was later born, was the fruits of the crime of incest, and the conspiracy extended even further on the part of the prosecutrix and defendant and looked to a resumption of their unlawful relations with each other as soon as the birth of the child had been accomplished and the public had been quieted, and the relatives of the prosecutrix and defendant satisfied regarding the defendant’s connection with prose-cutrix. It is evident also that the conspiracy extended and contemplated that both prosecutrix and defendant would deny that the defendant was the father of the child in question and commit perjury with regard thereto, if necessary, in order to keep secret the fact that said child was the offspring of incestuous intercourse, and in order to carry out their design that such intercourse might be resumed by them. . . .” In another he said: “The witness (Cassie Dunn), though used by the State, had sworn on the trial that the defendant was not the father ■of her child and showed to be very friendly toward the defendant and willing to swear anything that she could that would be in his favor.” In another he said: “The witness was extremely unfriendly to the State and sometimes sullen and openly testified to anything that she thought would be beneficial to the defendant.” In another he-said: “The prosecutrix testified adversely and injuriously to the State on the trial of this case. In fact, she was friendly to the defendant, and in his hands dike clay in the potter’s hands.”’ Bob Hollingsworth, a cousin of appellant, testified that in April or May, 1912, one morning between daylight and sun up he went to appellant’s house to see him on some business, and as he walked up to the yard gate, he looked into the house and saw Cassie Dunn sitting in appellant’s lap; that at the time neither Cassie nor appellant saw him, but before he could call, a dog barked, which attracted their attention; that they then both looked and saw him, and Cassie at once got up out of his lap and sat in a chair beside him. Oscar Easter for the State testified that in the spring of 1914 he went, late in the evening from Neel Dollins to Tom Dollins to get some clean clothes, they both living in the same neighborhood of appellant; that appellant lived somewhat between the said two Dollins, and on this occasion he went by appellant’s to see him; that in approaching appellant’s lot he saw appellant therein feeding or preparing to feed his stock and that said Cassie went out there at that time to milk; that she at once went into the seed house. Appellant immediately followed her and while she was therein he went into the seed house; that he, the witness, then approached the seed house in such a position and close enough that he could see both the parties therein; that he then saw appellant and said Cassie having sexual intercourse. Appellant testified and both he and said Cassie denied that they had ever at any time or place had sexual intercourse. Appellant made a motion for a continuance on account of the absence ■of his mother and his two married daughters, Mrs. Whitley and Mrs. Ford, his two daughters living near to and in his immediate vicinity. The State vigorously contested this motion. The bill and record shows that he was indicted January 19, 1915, arrested on the 22nd, made bond the same day and that day had subpoenas issued for said witnesses, which were executed, returnable January 25th, at which latter time the ■case was set for trial. It appears that for some reason the case was reset from the 25th to the 27th of January, at which latter date Mrs. Ford was in attendance but the other two were not; that the trial of the case was again postponed for some reason undisclosed until February 3rd; on that date it seems neither of these witnesses attended. The case was again postponed till February 5th, at which time neither of the witnesses were present, though they had been notified by phone ■on the 3rd to appear on the 5th. Appellant claimed that each of them was too unwell to attend the court. The court, in allowing and approving the bill, fully explained and ■qualified it, which was accepted by appellant and he is bound thereby. In tliis explanation and qualification tbe trial judge showed that appellant’s mother was an old woman eighty-six years old and was unable to walk without help; that she was both aged and infirm, of which appellant had absolute knowledge all the time, and her absence was no ground for continuance; that he could and should have taken her depositions, citing art. 818, C. C. P. We think there can be no doubt but that the court correctly overruled the application as to this witness. Kirkpatrick v. State, 57 Texas Crim. Rep., 17; Gregory v. State, 39 S. W. Rep., 572; Brittain v. State, 40 S. W. Rep., 297. The trial judge, in further explanation of the bill, clearly shows that what was expected to be testified by these witnesses was amply proved on the trial by other witnesses and was of matters which were not contested but conceded by the State. The bill and qualification of the judge are quite lengthy. We deem it unnecessary to copy either. We have carefully read them and the bill as qualified by the court clearly shows that no error was committed in overruling appellant’s motion. By appellant’s bill No. 2 he complains that the State was permitted, on redirect examination of Cassie Dunn, to have her testify that she had a conversation with Dr. Bailey about writing to the child’s father for money, his objections being that it was out of his hearing and presence, was hearsay, immaterial and irrelevant, he could not be bound thereby and it would tend to prejudice him before the jury. By his bill No. 7 he complains that while Dr. Bailey was testifying for the State he testified that when he first examined Cassie Dunn and told her she was pregnant that he told her a place where she could go and stay till the baby was born, and if the man who was responsible for her condition was able to pay for it she could go there and stay until the baby was born and they could have someone to adopt the baby and she could return to her home and that noboby would ever know anything about it; that it would take a good deal of money to do that, and that Cassie said she could get plenty of money. Appellant objected to this testimony for the same reasons as to that of Cassie in bill No. 2. The court explained each of these bills and shows that in effect this testimony of Cassie Dunn was brought out on his cross-examination of her and with reference to the writing of a $300 letter introduced in evidence. Besides, as to bill No. 7, the court further states that appellant did not object to Dr. Bailey stating the whole conversation he had with Cassie in explanation of his attitude and that he understood it was agreeable with appellant’s attorney for the doctor to make said full statement and that the objection he made was not to its admissibility but went rather to the weight of the testimony. As explained by the judge neither of these bills shows any error. Appellant has several bills of exceptions as to what the State proved was testified to by -Cassie Dunn before the grand jury and the admission in evidence of her written sworn statement made before it, and of her other testimony and conduct before the grand jury. Said written statement is as follows: “Jan. 11, 1915. Miss Cassie Dunn being duly sworn testified: For about the past four years I have lived with Uncle Alfred Hollingsworth, near Tumersville, in Coryell County. When I went there to live his family consisted of himself, his two boys, Eoy and Joe, and Grandmother H. lived there about half of the time. Eoy and Joe both married about October, 1912, and moved to themselves.' Me and Fanny lived there all the time. My brother William lived the most of his time with the other kinsfolk. I did the cooking, the milking and the general housework, and Fanny helped me. My baby was born October 29, 1914. I never had any intercourse with but one man in my life. The first time I ever had intercourse with this man was when I was about nineteen years old. k I had intercourse several times. I never had any sweethearts. I told Hncle Alfred not to tell who it was. He knows who it is and he is the only one I ever told who it was and he will not tell. I won’t tell who it was. Fanny wrote the letter you have shown me dated November 22, 1914. 'She wrote it for Hncle Alfred. Somebody else wrote the one to father, but Uncle Alfred signed it. That is his handwriting. I received that letter through the mails. I wrote the letter you have read me dated November 24th to my uncle. I knew I was doing wrong.. I would not'have yielded my virtue to any man that did not have my respect and confidence. I had intercourse with the man in different places, both night and day. Uncle Alfred knew when I left to go out West that I was pregnant, and I promised him not to tell it. He knows who it is. The things I said in that letter are true. Cassie' Dunn.” We will discuss the questions raised by these bills without takingi them up separately. We have given above the substance in full of Cassie Dunn’s testimony on direct examination when first introduced by the .State. A careful and thorough consideration of these bills, as qualified by the court, and unquestionably sustained by the record, shows that the State, in no instance and at no time, attacked or attempted to attack the said testimony given on direct examination of said Cassie Dunn. Her said testimony, as stated above, tended, we think, with considerable force, circumstantially, to show appellant’s guilt. There is no indication by her testimony on direct examination which shows or tends to show that she failed to remember or refused to testify, or failed to make the State’s case. On the contrary, it was shown by her testimony on cross-examination at various times and in its various phases, that her testimony tended, and if believed, would have shown appellant’s innocence of the crime with which he is charged. Under such circumstances there can be no question, both by the statute itself (C. 0. P., art. 815) and a long and uniform line of decisions, that the State could impeach and attack her as to such testimony so given by her on cross-examination. The fact, if so, that-the State’s counsel knew or had information that this witness Gn cross-examination might give testimony materially injurious to the State’s case would not and could not preclude the State from introducing her as its witness to prove as it did material facts against appellant by her. As to these material facts only, the State had her to testify as stated above. The State never at any time sought to impeach her or attack her testimony drawn out by its direct examination, but it was only that which was given by her at appellant’s instance on cross-examination. Appellant seeks to apply that well established rule that it is error for the State to impeach its own witness where such witness merely fails to remember or refuses to testify or fails to make out the State’s case, that a mere failure to make proof is no ground for impeaching such witness. Mr. Branch in his Criminal .Law, section 866, lays down the abov? rule and cites many decisions of this court to that effect. Appellant cites only some of these cases cited by Mr. Branch. In other words, Mr. Branch cites a larger number of eases establishing this rule than does appellant herein, but they are all on the same line. The true rule applicable in this case is prescribed by our statute. It is (C. C. P., art.- 815): “The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness.” That is the rule and the only rule • applicable in this case and was followed by the trial judge. Appellant has several other bills, one of which was expressly refused by the court. Others so modified by the judge’s qualification as to practically refuse them. And as so modified and qualified by the judge none of them present error. • It is unnecessary to state them. Appellant most vigorously attacked the testimony of said Oscar Easter as false, recently fabricated and corruptly induced by Henry Dollins and his. brothers. Under the circumstances the court committed no error in permitting the two brothers of Henry Dollins, whom Cassie Dunn said was the father of her child, to testify to facts which circumstantially corroborated said Easter, over his objections, that their testimony was immaterial and irrelevant. McGrath v. State, 35 Texas Crim. Rep., 413; Wade v. State, 37 Texas Crim. Rep., 401; Hamblin v. State, 41 Texas Crim. Rep., 135; Ball v. State, 44 Texas Crim. Rep., 185; Lamb v. State, 55 Texas Crim. Rep., 323, and other eases collated in Branch’s Crim. Law, sec. 46. There is no question but that the other bills, as explained and qualified by the trial judge, show such a state of facts as that Cassie Dunn wrote to appellant a certain letter asking for $300. In fact, appellant acknowledged receipt of that letter but claimed to have lost it. That it was written by Cassie Dpnn to him, received by him and lost or destroyed, was clearly established. So that not only did the State have the right to cross-examine him about it, but to introduce secondary evidence of its contents, and none of appellant’s bills on that subject, as qualified, show any error. Other bills, as qualified by the judge, clearly show that Cassie Dunn, soon after the birth of her child, wrote and had mailed to appellant a letter, a copy of which is as follows: “I don’t want to tell you a lie and I will not if the truth kills me. You know what you thought was the matter with me. It was so. It came the 29th1 of last month. It is a boy and all right. Has the bright eyes. I intend' to bring it to Ft. Worth to one of the rescue homes. You know it was nobody else but you, but I will die before I will tell it. I have told Pa a story. Never told you any stories. You may think I am not as good as I was. I know I am to blame for it. So you see what I wanted with the money. It was for Bailey. He charged me fifteen dollars, so you see that would be enough for me to go'to Ft. Worth. I can’t help what Pa wrote down there. He has done everything he can to get me to tell him. IT1 die first. I told you I would not tell and I have not yet; do as you like, cast me off if you want to but I’ll never tell it. I spent my money for fruit and the rest for the boy some close for the boy and that is why I wanted you to come to meet me. I wanted you to see him. Don’t let Fanny read this. (On the back of this page is the following): ‘A. M. Hol-lingsworth. Fanny don’t you open this. Uncle Alfred, you open it yourself.’” He denied the receipt of this letter, but the State established such a state of facts as would justify the trial judge and the jury to believe that he did receive the letter and his denial of the receipt thereof was false. Cassie Dunn’s father, without her knowledge, took a copy of the letter to appellant and the address thereon, and he and Dr. Bailey at the time examined and compared the original with the copy he retained. If the letter was received by appellant, which he denied, he had lost or destroyed it and failed to produce it on this trial. Under the circumstances the copy of the letter and asking the various witnesses thereabout was clearly admissible. On the theory that he had demonstrated to the jury that said Easter’s testimony was false and that where he placed himself he could not have seen the act of incestuous intercourse between appellant and Cassie Dunn, he asked a charge on circumstantial evidence which the court refused. We think it would have been improper for the court to have given a charge on any such assumption. We have studied the record and statement of facts in connection with this matter and we think the lower court would not have been justified in taking that question from the jury by giving such charge. Whether his testimony or whether the testimony of the witnesses from their standpoint testifying that he could not have seen what he testified he did see, was correct or incorrect, was a question for the jury. Among other things the court charged the jury as follows: “You are further instructed that if you find from the evidence that the witness Cassie Dunn in her testimony before the grand jury stated facts relating to the defendant’s connection with the alleged crime of incest differently from the way she testified on the stand in the trial of this ease, then you can only consider her testimony before the grand jury for the purpose of enabling you, if it does enable you, to do so, in passing upon the credibility of the witness Cassie Dunn, and of determining the weight you will give to her testimony. Her testimony, as she gave it upon the stand in this case, must be regarded as her evidence in your deliberations. Her statements made to the grand jury, if any different to what she testified, can not be considered as evidence of the defendant’s guilt, but only for the purpose aforesaid of aiding you in determining the credibility of the said witness, if it does aid you in that regard. “You are further instructed that if you do not believe from the evidence beyond a reasonable doubt, that the defendant received the letter, a copy of which has been exhibited in evidence before you, you will not consider the same for any purpose, except that of aiding you, if it does aid you, in determining the credibility of the witness Cassie Dunn, but you may consider it for that purpose only. However, if said letter was received by the defendant you will determine the weight you will give to the same under the instructions given you in the last paragraph of this charge.” We think appellant’s criticism of the last three lines of the second paragraph, claiming that it was on the weight of the evidence, is untenable.. Taking the charge as a whole, it was proper for the court to charge as he did under the evidence. If the jury had not believed beyond a reasonable doubt that appellant received that letter — there was. ample evidence for them to conclude he had, but as he denied it the question had to be submitted to the jury for a finding— then it was necessary for the court to tell them that they could not consider it at all. But, on the contrary, that if they believed he did receive it, then they could consider it only on the question of the credibility of Cassie Dunn, and under the circumstances, adding the latter clause to it and qualifying it with the first paragraph just above quoted, can not be construed to be on the weight of the testimony, but it was merely submitting the question to the jury. It is embraced within the hule about a confession which is denied by an accused. Besides, the court not only required the jury to believe affirmatively all the facts essential to convict appellant, otherwise to acquit him, but told them he was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt and in case they had such doubt to acquit him. And also that they were the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to their testimony. Appellant has two bills of exceptions complaining of the argument of the district attorney. As qualified by the judge it is shown that the argument objected to was provoked and in answer to that of appellant’s attorney, and neither presents error. Sinclair v. State, 35 Texas Crim. Rep., 130; Baker v. State, 4 Texas Crim. App., 223; Chalk v. State, 35 Texas Crim. Rep., 116; Ray v. State, 35 Texas Crim. Rep., 354; Campbell v. State, 35 Texas Crim. Rep., 160; Martin v. State, 41 Texas Crim. Rep., 242; Pierson v. State, 21 Texas Crim. App., 14; Norris v. State, 32 Texas Crim. Rep., 172; Williams v. State, 24 Texas Crim. App., 32; Vann v. State, 48 Texas Crim. Rep., 11; Hilcher v. State, 60 Texas Crim. Rep., 180, 131 S. W. Rep., 592; Washington v. State, 35 Texas Crim. Rep., 154; Mooney v. State, 76 Texas Crim. Rep., 539, 176 S. W. Rep., 52. The only other question necessary to mention is appellant’s motion for a new trial on the ground of newly discovered evidence. The court, as the record shows, heard evidence on this. The motion itself and the affidavits attempting to support it and the statement of facts thereon are quite lengthy. We have carefully studied the question and the record on the subject. We deem it unnecessary to go into any statement of it. Suffice it to say that we think the trial judge correctly held that the appellant was not entitled to a new trial on that ground and we think would not have been justified in. granting a new trial. The judgment is affirmed. Affirmed.
ON REHEARING. January 12, 1916. HARPER, Judge. This case was affirmed some time ago, and Presiding Judge Prendergast in his opinion explains, in a great measure, the delay in acting on the motion for a rehearing. The writer of this opinion wants to admit that he conferred with and discussed with the Presiding Judge the opinion in this case before it was handed down, and he at that timé concurred with him in the opinion that the case should be affirmed, but a further study of the record, the briefs filed by able counsel, and the authorities bearing on the questions involved, has led him to the opinion that he was in error. If he had written the original opinion he would feel less reluctance in now holding that the record presents error, because he, in a measure, feels that he may be in part responsible for the errors in which he now believes appear in the holding in the original opinion, and he wishes to assume his full responsibility for such opinion. Yet, while doing so, he feels it his duty, as a member of this court, when convinced of his error, he should unhesitatingly admit his error, for every man in this State, regardless of how guilty he may be (if guilty he be) is entitled to a trial in accordance with, the settled rules of law, and if he has not received such a trial, to have his case reversed in order that he may be accorded a fair and impartial trial, and his guilt or innocence passed "on by a jury only on evidence legally admissible. We think the court erred in holding that the State could impeach its witness' Miss Oassie Dunn. The State called her as its first witness and had her testify: “My name is Miss Cassie Dunn. I suppose I am a daughter of Tom Dunn. My mother was Bettie Dunn. She was a sister to Alfred Hol-lingsworth. For the past four or five years I have been living and making my home with Hncle Alfred Hollingsworth. He lives up close to Prairie Yiew, up close to Hurst in Coryell County. When I went to Hncle Alfred’s to live the family consisted of himself and two boys, Roy and Joe. Roy and Joe stayed at home two years. When the boys married Joe left home and Joe went right straight and Roy stayed at home till January. They have been married two years last October. Yes, I am speaking' of the old man’s two boys, Roy and Joe. They married in about October, 1912. They have been living to themselves ever since they were married except Roy stayed there at his father’s from October to January and tben left. Eoy left there January 1, 1913. He has been away the first of this year makes two years. After the boys left Uncle Alfred and myself and Fannie constituted the family. Fannie was not there till two years ago last August. Fannie came there in August before the boys married in October. Fannie came there two years ago last August. She came in August, 1912. I am twenty years old. Was twenty years old the 18th day of last June. Fannie and I both did the housekeeping and cooking and washing dishes and milking and things of that kind for Uncle Alfred. We both did it together. Sometimes Fannie would leave there and go to her other uncles and visit, but she did not go very often and did not stay very long. Sometimes she would go and stay a week or two at a time. She did not do that very often. My uncle had five brothers that lived up in that neighborhood and Fannie would go and stay with them whenever she wanted to. When Fannie would go away that would leave Uncle Alfred and myself there alone. When Fannie was gone I did the milking and cooking. I kept house and made up the beds, etc. I attended ito all that when she was not there. When Fannie was not there she :did not do any of the work and of eoursé I did it, but when she was 'there she assisted me in it. I did not during that time have any sweethearts or beaux that went with me. Did not have any beaux or keep company with anyone. I went to parties and gatherings and sing-ings and things of that kind during that time, but goodness I don’t know how often I went to them. I went a good deal, for a while and then I did not go so often but I went enough I suppose. I went a good deal the first two years, before the boys married. After the boys married I did not go so much because I did not have anybody to go with me. When I did go Uncle Alfred and first one and then another would carry me. Uncle Alfred carried me to church but he did not carry me to parties. He would carry me to town occasionally. We lived four or five miles from Turnersville. That is not where we did our trading. We did it at Hurst and Clifton. Clifton was about fifteen miles from where we lived. That is a larger town than Turners-ville. I went home and' left my Uncle Alfred’s house on the 19th day of June, 1914. Uncle Alfred treated me just like he would one of his own children all the time I lived there. He treated me right — just like he would his own girl. Anything I wanted I got it. Dresses or anything else. Q. Do you love your Uncle Alfred? A. I love every one of my uncles. Yes, I expect I love Uncle Alfred better than any of the balance of my uncles. I have loved him all the time. I love every one of my uncles. “I was pregnant'when I went home in June, 1914. I had been at, home about a month before my people found out that I was pregnant. Dr. Bailey is the man that told them about me being pregnant. I was sick and we called in Dr. Bailey to wait on me and he told them what was the matter with me. I have a child now. It was born the 29th of October.” This was all her testimony on direct examination. Why did the State call this witness and have her testify that she lived with appellant; that she loved him better than she did either one of her other uncles; that she and her sister lived alone with appellant. That while she had lived with her uncle (appellant) she had no beaux or sweethearts; that she was pregnant when she left appellant’s home in June, and that a child was born to her on the 29th of October, etc. By the indictment appellant was charged with having incestuous, intercourse with this witness — his niece. Were not all the above facts, and circumstances elicited from the girl to prove by circumstantial evidence that appellant was the father of her child; that no other person had opportunity, and would not the evidence thus adduced by the State have a strong tendency to show that he was guilty of the charge, if no other testimony was adduced from her ? The State having before the trial been informed by the witness that she would testify that another was the father of the child, and appellant had never had intercourse with her, could it adroitly, by not asking her who was the father of the child, adduce testimony from her that would fasten the crime on him, and appellant not be permitted on cross-examination to ask her who was the father of her child and elicit from her the following facts: “Henry Dollins is the father of my child. My uncle (appellant) never did have any illicit intercourse with me,” without making' the girl his (appellant’s) witness? If the State had not known the girl would so testify before they called her as a witness, there is no doubt they could impeach her as to those statements. But the record places it beyond question, and it is in no way controverted that the girl had told the district attorney the week prior that she would testify that Henry Dollins was the father of her child, and her uncle, appellant,, had never at any time had intercourse with her, and this was the reason the State avoided asking that question, yet the State called her as a witness and proved all other and different facts it could by her that would tend to fasten the crime on appellant. She testified: “That night when you and Mr. Cobb and my uncle and father all came down there with Mr. Calloway, the district attorney, you all left the room and left Mr. Calloway and I in the room to talk the matter over. I told Mr. Calloway then and there that Henry Dollins was responsible and that my uncle was not responsible.” When can the State impeach its. own witness? At common law it could never do so, but by virtue of our statute, article 815, it is provided, when facts" stated by the witness are injurious to the cause of the party offering the witness, he may be impeached as to such testimony. . The only case which we have found that would seem to sanction the action of the trial court in permitting Miss Dunn to be impeached is Blake v. State, 38 Texas Crim. Rep., 377. In that case it was held that the party offering the witness need not be surprised by the testimony, if he had good reason to believe that when the witness was called on to testify he would testify to facts beneficial and not injurious to his cause. In this case the State can not and does, not contend that it had any reason to believe that she would testify, that her uncle, appellant, had had intercourse with her. She had been before the grand jury, and there had refused to testify who was the father of her child, although the record makes it manifest that she at that time knew they were investigating as to whether or not appellant had had incestuous intercourse with her, but after going before the grand jury she had told the district attorney that appellant had not had incestuous intercourse with her, and that Henry Dollins was the father of her child, and with knowledge that she would so testify, the State calls her as a witness and adduces from her facts and circumstances which would tend to show that appellant was guilty of the incestuous intercourse, knowing at the time if asked the question she would most emphatically deny such to be the fact, and for this reason propounds no such question. The State desired the jury to believe her when she testified to facts and circumstances tending to show his guilt, and introduced her to prove those facts and circumstances, but claims the privilege of impeaching her as a witness when she testifies to a fact to which they knew she would testify that would show that no such fact should be deduced from the facts and circumstances that they had called her to prove. In Oats v. State, 67 Texas Crim. Rep., 488, 149 S. W. Rep., 1194, we held that under such circumstances a witness could not be impeached, and we believe the rule there announced applies to the State as well as to the defendant. And the identical question here involved was passed on by this court in Perrett v. State, 75 Texas Crim. Rep., 94, 170 S. W. Rep., 316, being an incest case, and it was there held: “The State will not be permitted to put a witness on the stand, knowing that the testimony would be adverse, in order to get in another statement which would be beneficial to the State. If the State had expected her to swear to the intercourse, and she had denied it, then perhaps the prosecution might have introduced this testimony by way of impeachment, but not so when the State was fully aware she would not so testify when placed on the witness stand.5’ And in Scott v. State, 20 S. W. Rep., 549, this court said: “The statute is for the protection of those whose cause is unexpectedly injured by the witness.” The State, knowing she would testify that appellant had never had an act of intercourse with her and that- Henry Dollins was the father of her child, yet called her as its first witness to prove facts and circumstances that would lead the jury to find that he had had intercourse with her. This was the whole purpose and sole purpose of the testimony adduced from her by the State, and the purpose of introducing her testimony before the grand jury was not to show that the witness was wholly unworthy of belief, but that appellant was guilty of the crime. The statement that Henry Dollins was the father of her child, and that appellant had never had intercourse with her in nowise conflicted with her testimony before the grand jury, except- in so far as the circumstances stated before the grand jury might have a tendency to show appellant’s guilt. When before the grand jury she refused to state who was the father of her child, and with whom she had had intercourse. Her testimony on this trial in nowise conflicted with that statement. We are, therefore, of the opinion that the court erred in admitting the statement made by the witness before the grand jury to impeach her. And also the letter written in .November, 1914, by ber, in so far as it was admitted to impeach her testimony given on this trial. But if in error in so holding, as to it being admissible to impeach her, then we are called on to pass on the question of whether or not the letter was admissible in evidence as tending to show the guilt of appellant, and could be considered by the jury for that purpose if he received it. The court specifically in his charge authorized them to so consider it, if they found that he received the letter. We will not pass on the question as to whether or not a letter of this character is.admissible under any circumstances, but simply hold that under the facts of this case such letter was not admissible as original testimony to show that appellant was guilty of the crime of incest. Appellant’s counsel have filed a very able and exhaustive brief, contending that under no circumstances could such a letter be admissible as original testimony tending to show the guilt of the person on trial. This brief will be published in connection with this opinion in the official reports... Presiding Judge Pren-dergast exhaustively reviews the authorities which would tend to hold that such letter is admissible under certain circumstances as original testimony as tending to show the guilt of the accused. We do not think the facts of this case bring the letter within the rules of law cited by our Presiding Judge. He cites Wigmore on Evidence, section 1073, and other sections. Mr. Wigmore states, “the different situations (in which such instruments become admissible) may be grouped under four heads: (1) Documents seen; (2) documents found in possession; (3) documents of demand, received but not'answered; and (4) documents made use of.” And in dealing with the third says: “The failure to reply to a written communication may sometimes suffice to permit an inference of the party’s assent to the correctness of the statements made therein. But the inference is not ordinarily so strong; and judges have always pointed out that the failure to reply in writing to a written communication does not have the same significance as a failure to Teply orally to an oral communication. So far as any definite rule is concerned, it seems impracticable, and the precedents indicate that each case must stand upon its own facts.” Under this text he cites Hill v. Pratt, 29 Vt., 119, which holds: “It would seem that the rule has never been extended to unanswered letters, particulárly when the fact-stated has relation to past transactions and upon which no future action of the party is contemplated.” Many other cases will he found cited under this section of Wigmore, and they make it evident to our mind-that under the rule as stated by that author, the letter in this case was inadmissible. The father had written appellant in July charging him with being the father of his daughter’s child. Appellant replied at once, indignantly denying the fact. When the charge was renewed'in November, why was he called on to reply again, having denied it when ■first charged by letter? Is one compelled to answer letter after letter, if he has answered the first denying the charge, else the subsequent letters will be admissible as an admission of guilt? We do not think so. ■The most that can be said, under the facts in this case, is that the girl wrote the letter, and appellant received it. He in no way acted on the letter. He denies ever having received it, and while it may be said the testimony would support a finding that he did receive it, yet if he did do so, all he did was to destroy it and make no answer thereto, having already written to the girl’s father denying the accusation. This was but an unsworn statement of the girl contained in a letter. This could legally prove no fact. Appellant can be said to have completely and entirely ignored the letter. It may be that the State could have asked the girl if she did not write such a letter to appellant and he not answer it, on the theory that when one is charged with crime his conduct and failure to act may be considered as evidence against him, but this would not render the letter admissible as evidence that he was guilty of the crime. It is his act, not hers, which the law considers as evidence of his guilt. The letter is copied in the original opinion, and we do not, therefore, deem it necessary to here copy it, or state its contents. It charged appellant with being the father of the child. The witness Cassie Dunn testified on the trial that she wrote this letter and gave it to her father to mail. Her father testified he took a copy of the letter and mailed it. This copy was introduced in evidence. After testifying she wrote the letter, Miss Dunn testified, when asked if the statement contained in the letter were true or false: “It was false. I told you once that the statement in the letter as to my uncle being the father of my child was false.” In his charge the court tells the jury if they find that the defendant received this letter they would be authorized to consider the statements contained therein in passing on the guilt or innocence of appellant. We know of no rule of law which would authorize an unsworn statement of a witness to be considered as evidence of one’s guilt, where the witness swears on the trial that the unsworn statement is untrue. Such statement may be used at times to impeach a witness, but never to prove a fact against a person on trial. The witness swore the statement contained in the letter, that appellant was the father of her child, was not true. It may be that they conspired and concluded to acquit appellant; that her testimony on the trial was untrue, but it is only testimony which some witness swears on the trial is true which can be considered in passing on the guilt or innocence of the person accused of crime. An unsworn ex parte statement is never evidence of that fact. Attached to the motion for a new trial is an affidavit of this girl in which she swears: “1 further state that I wrote the two letters which my uncle had and which were offered in evidence upon the trial of his ease after my child was bom, and also one which my father copied under compulsion from my father. My father, after the birth of my child, told me I had to write these three letters or he would whip me. I did not want to write them for they were not true, but in my condition I thought I had to do it. I did not know why my father so insisted upon my writing these letters until since I have come back home. Recently my stepmother went to Abilene to visit, and before she left she told me not to visit Mrs. Guy Thomas. After mother left Mrs. Thomas came to our house and told me that the reason my father made me write the letters was, that my stepmother had threatened to leave him if he did not. Mrs. Thomas told me that my stepmother told her that she had told papa that if he did not make me lay my condition on Uncle Alfred she would leave him. She also told Mrs. Thomas that if I would lay it on Uncle Alfred, papa could get a thousand or fifteen hundred dollars out of Uncle Alfred to keep it out of court. I never told any of this to anyone until after the trial of Uncle Alfred. I did not want to do it on account of papa/’ It may be that appellant is guilty, as is so strenuously insisted on by our Presiding Judge in his opinion overruling the motion for a rehearing. This we do not care to discuss, nor express an opinion on, but we do hold that no person’s liberty ought to be taken away from him and he branded as a felon upon the unsworn statement of a girl contained in a letter, which she swears is not true, and which, in affidavit attached to a motion for a new trial, she swears she-was compelled to write by her father while she lay sick shortly after child birth, and which she says was written to obtain money from appellant. The law does not sanction blackmail any more than it does the crime of incest. We do. not think anyone could read this record and say that unless the jury had been authorized to consider this letter of Cassie Dunn as evidence of the guilt of appellant, the j'ury would beyond question have found appellant guilty and assessed against him the highest penalty known to the law for the crime of incest. Appellant is a man fifty-nine years of age. He had lived in the same community for twenty-eight years immediately preceding his trial. His wife had been dead for twenty years. He had raised a family of hoys and girls, and when he offered to prove by his neighbors that during all these years he had lived the life of a peaceable, law-abiding citizen and a virtuous man, the State admitted as a fact “that the defendant has been a peaceable, law-abiding, quiet citizen all the time that' he lived in that community; that his reputation up to the time of this occurrence has been that of an honest, upright and virtuous citizen.” It may be that in his old age he has committed this crime, and if so the punishment is none too severe, but before the writer can consent that his reputation of a lifetime of upright citizenship be taken from him and he incarcerated in prison walls, it must be done upon testimony which the law says is legal and competent and not upon unsworn statements of the girl, which she swears on the trial are false and untrue. There are other questions in the ease, and especially the first application for a continuance, which the writer thinks present error, but we do not deem iU necessary to discuss them. The witnesses for whom the continuance was sought can be had on another trial, if granted, and if not a discussion of that question would be of no avail. Being of the opinion that at least that portion of the charge of the court which authorized the j'ury to consider the letter written by the girl as evidence of appellant’s guilt, under the facts in this case, presents err.or for whicb the judgment should be reversed, wé think the motion for a rehearing should be granted and the judgment reversed and remanded for another trial. As before stated, upon the other questions presented not herein discussed, the writer expresses no opinion, as he does not deem them essential to a disposition of the ease. The motion for a rehearing is granted, the affirmance is set aside, and the judgment is reversed and the cause remanded. Reversed, and remanded. DAVIDSON, Judge. — I agree to the reversal.
DAVIDSON, Judge (concurring). — Reviewing the record in the light of the motion for rehearing, I am concurring with Judge Harper in reversing the judgment. I do not purpose to enter into a lengthy discussion of the facts; they are sufficiently set out in the opinion written by our Presiding Judge and Judge Harper. The letter, under discussion in those opinions, in my judgment, was not admissible either as original or impeaching evidence. The State was fully aware of the fact when they placed Cassie Dunn on the stand as a witness that she would not testify that appellant had intercourse with her, or was the father of her child, but that she would testify that Henry Dollins was the child’s father. Before the grand jury she refused positively to name the author of her shame, but some time before the trial of the case she had informed the prosecution of the fact that she would not testify to her uncle’s guilt but would testify that a man by the name of Dollins was the father of her child. This was communicated by Cassie Dunn to the State some time before she was placed on the witness stand. So any question of surprise was eliminated. She had not misled the State in any wav, therefore they were not only not expecting her to testify that appellant was the father of her child but knew she would not. This is not a ease like Blake v. State, 38 Texas Crim. Rep., 377, where the witness had sworn to a state of facts and subsequently testified contrary to those former' statements. Judge Hurt in that opinion held that the party placing the witness on the stand has the right to expect him to testify as formerly, but the facts in this case are different. This witness had not testified to her uncle’s guilt, or at least of the fact that he was the father of her child, and had informed the State she would not so testify, yet in the face of this she was placed upon the stand as a witness and testified that Dollins was the father of her child. It is a settled rule that where a prosecuting witness does not testify as expected, the State can not prove its, ease by showing as original testimony statements of the witness made outside of court contradictory of those testified on the trial. Dunigan v. State, 38 Texas Crim. Rep., 614. For collation of authorities see Rose’s Notes, vol. 5, p. 1207; Goss v. State, 57 Texas Crim. Rep., 557; Harris v. State, 68 Texas Crim. Rep., 208. It is a well settled rule that failure to make proof is not sufficient as a predicate for impeachment. Largin v. State, 37 Texas Crim. Rep., 574; Bennett v. State, 24 Texas Crim. App., 73; Smith v. State, 45 Texas Crim. Rep., 520; Scott v. State, 52 Texas Crim. Rep., 164; Wells v. State, 43 Texas Crim. Rep., 451; Owens v. State, 46 Texas Crim. Rep., 14; Hanna v. State, 46 Texas Crim. Rep., 5; Skeen v. State, 51 Texas Crim. Rep., 39; Quinn v. State, 51 Texas Crim. Rep., 155; Shackelford v. State, 27 S. W. Rep., 8; Finn v. State, 47 S. W. Rep., 1015; Knight v. State, 65 S. W. Rep., 88; Goss v. State, 57 Texas Crim. Rep., 557. There are many other cases that might be cited in support of this proposition, but these would seem to be ample. The State would not be authorized to place Cassie Dunn on the stand with full knowledge that her testimony would exonerate defendant and inculpate another as the guilty party, and successfully then offer another statement of hers made out of court which would be beneficial to the State. Perrett v. State, 75 Texas Crim. Rep., 94, 170 S. W. Rep., 316. I do not care to amplify this matter. This is the only question in the case that I care to discuss. I think the exception to the court’s charge was well taken, but I do not care to enter into a discussion of that question. I,therefore, concur with Judge Harper in granting the motion for ' rehearing and reversing and remanding the judgment.
PRENDERGAST, PRESIDING Judge (dissenting). — This ease was affirmed, and the opinion rendered, on June 16, 1915. On June 29th following, — after this court had adjourned to October 4, 1915, appellant, by his able attorneys who represented him in the court below and in this court on the original submission, filed a motion for rehearing on these grounds only: 1. Claiming that this court erred in holding against him on his bills and propositions thereunder relative to the testimony of Cassie Dunn, as set out in pages 1, 2 and 3 of the opinion, and further contending that the judge’s qualifications were unauthorized and this court in effect should disregard them. I think his contentions on this point are not well founded and can not be sustained. I further believe that the record bears out the district judge in his qualifications to the bills. 2. His next ground is, in effect, that the court erred in overruling his motion for a continuance. He also claims that the explanation made by the judge to his bill on this question is not borne out by the record. I have again examined this question, and think the judge’s qualification is borne out fully by the record. I stated'it sufficiently in the original opinion. 3. His only other ground for a rehearing is his claim that the court erred in overruling his motion for a new trial because of his claimed newly discovered evidence. I have again reviewed this question, and am well satisfied that no reversible error was committed by the court on this ground. He heard all the testimony, saw the witnesses and their manner of testifying, the manner of direct and cross-examination, and was better able to judge their veracity, etc., than this court possibly could. Lamb v. State, 74 Texas Crim. Rep., 301, 169 S. W. Rep., 1158. As stated, the above three grounds are the only ones made the basis of the motion for rehearing herein. At the instance of appellant’s other eminent attorneys, evidently engaged by him after the original decision and filing of his motion for rehearing herein had been had, the submission of this cause for rehearing was postponed for some weeks in order that they might further brief for him said motion. They then filed quite a lengthy and able brief and argument. Later, they were given additional time, and then filed still another brief. Without any complaint whatever by appellant in his motion for rehearing, in said brief, he now urges two other grounds: — in one'that the trial court erred in admitting in evidence the letter of Cassie Dunn to him, copied in the original opinion; in the other, to the latter sentence of the court’s charge to the jury relative to their consideration of this letter. This charge is also copied in the original opinion. First, as to the admissibility of said letter. It is conceded by appellant that the objection to the copy, because a copy and not the original, is under the proof, not well taken. He seems to concede in one place in his brief, “that letter and the inquiries made concerning it may have been admissible on redirect examination of Cassie Dunn, with a view of refreshing her memory, with a view of inducing her to confirm and admit statements theretofore made, or even for the purpose of contradicting her.” But his urgent and vigorous contention is: “If the original letter had been presented and it was' conceded that it had been received by appellant and it were shown beyond controversy that it was produced from his possession it would not have been admissible,” and he asserts he will “demonstrate this.” I think the reverse of his contention is the ,law and can be demonstrated to be so, both by reason and authority. His seeming concession that the letter may have been admissible for said certain purposes, and his immediate insistence that it was inadmissible, are, at least, apparently inconsistent and contradictory. The witness Cassie Dunn was unquestionably “extremely unfriendly to the State,” and “testified adversely and injuriously to the State” on appellant’s examination of her, and “openly testified to anything she thought would be beneficial to the defendant,” and was, “in his hands, dike clay in the potter’s hands,’” as stated by the trial judge, and is abundantly established by this record. And, at his instance, and upon his examination of her, he had her to testify specifically: “Henry Dollins is the father of my child. My uncle (appellant) never did have any illicit intercourse with me in any way. Never did ask me to. Never asked me to yield to him in any way.” She also swore that she told appellant before he sent her to her father’s, that she thought she was pregnant, and: “I did not tell him I would not tell who .the father of the cjiild was. I did not make him any promise in that regard.” The State impeached her on this testimony directly by her written statements in said letter. It is copied in the original opinion. It is unnecessary to again copy it. A mere reading of the letter will show it is a direct and flat contradiction of ber said testimony in favor of appellant on this trial. That said testimony by ber in favor of appellant, and given at bis instance, was very material for liim and against the State, can not even be questioned by anyone. Its direct and only effect, if believed by the jury, would have been to destroy the State’s case and show bis innocence of the crime for which he was indicted and on trial. So that it was the imperative duty of the State to discredit and impeach her as to this very material testimonjr, if it could -do so. Every text-book writer on the subject, and the decision of every court of the land, is, that former statements of a witness which are contradictory of his present testimony are admissible to impeach him. This is not only so by oral,- but especially so by written statements. This court has always heretofore so held, and all appellate courts of this State uniformly so hold. I. know of no exception. This method of impeaching a witness is daily and universally acted upon by all trial courts of this State. In order that no uncertainty might arise on this point as to one’s own witness our statute (C. C. P., art. 815) expressly enacted: “The rule that a party, introducing a witness, shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness.” There is nothing in his bills to show, or intimate, that the State knew or had any notice whatever that Cassie Dunn would testify that-Dollins was the father of her child when it introduced her and she gave material testimony in its behalf. Even if the State had known this, there is nothing in the books or decisions, until the majority opinion in this case, that the State could not impeach her by said letter and her sworn written testimony before the grand jury. The effect of the decision in Blake v. State, 38 Texas Crim. Rep., 377, cited in Judge Harper’s opinion, is to the reverse of what he cites it for. The cases of Scott v. State, 20 S. W. Rep., 549; Oates v. State, 67 Texas Crim. Rep., 488, 149 S. W. Rep., 1194, and Perrett v. State, 72 Texas Crim. Rep., 212, id., 75 Texas Crim. Rep., 94, 170 S. W. Rep., 316, have no application whatever to th