1. Witness — Impeachment of. — For the purpose of impeaching a witness' credibility, he may be asked, on cross-examination, if he was not then working out a fine for stealing a watch.
2. Assault with Intent to Rape — Evidence as to Complaints of Prosecutrix. — On a trial for assault with intent to rape, complaints of the outrage made by the assaulted female are legitimate and competent evidence; and the length of time intervening between the act and the complaints goes only to the weight, and not to the admissibility of such evidence.
3. Same — Name of the Assaulting Party — Res Gestæ. — In a trial for assault with intent to rape, the name of the assaulting party may be proved by the complaints of the prosecutrix, when such complaints and the details of the same constitute res gestæ.
4. Prosecutrix — Impeachment — Sustaining Evidence. — On a trial for assault with intent to rape, where an effort has been made to impeach the prosecutrix by proof of contradictory statements, Held, competent to sustain her testimony by evidence that she had told her mother the same facts testified to by her on the day of the assault, and prior to the contradictory statements.
DAVIDSON, JUDGE.
Appellant was charged with assault with intent to rape, and convicted of aggravated assault and battery. A witness for appellant, on cross-examination by the State, was permitted to state, that he (the witness) was then working out a fine for stealing a watch. The objection urged was not well taken. A witness can be impeached in this manner. Morris testified for the prosecution, that on the morning of and shortly after the assault by appellant upon the prosecutrix, he saw her, about a half a mile from appellant's house, walking with bowed bead, and with appearance of having been crying, and at her request took her to town, and thence to her home. She was greatly excited, and was trembling, and told him that appellant had insulted her. In going to town they passed appellant's house, when she became more excited and nervous. Appellant, when he discovered them passing, followed after, and demanded that the girl be left at his house. The girl, by permission of her mother, had been living with appellant's family some time, as a companion for his wife. The statements of the girl to Morris when be first met her were objected to by appellant. The objection was not well taken. The fact that complaint of the outrage was made by the injured female, in cases of rape and assaults to rape, is admissible in evidence, and the length of time intervening between the act and the complaint goes to the weight, and not so much to the admissibility, of the testimony. The details of the transaction or complaint made by the girl were not stated by this witness, if so made to him. It was clearly shown, that she had told others about the outrage by defendant, had sought protection from them, tried to borrow a pistol for self defense against appellant, and this was proven without objection, and this before she met Morris. It is not clear by any means that it should have been rejected, even if the details had been testified to, under the facts stated. The intervening time may have been an hour or more, but the girl was excited, nervous, and trembling; and the facts rather tend to preclude the idea of design in fixing up or manufacturing the story told by her. Castillo v. The State, 31 Tex.Crim. Rep..
It may be stated, that the name of the assaulting party can not be proved, as in this case, unless the complaint and details thereof constitute res gestæ.
It was sought to impeach the girl by showing she had made statements out of court contradictory of her evidence on the trial. This was testified by the sheriff. The State was then permitted, over appellant's objection, to prove the prosecutrix told her mother the same story testified by her, on the day of the assault, and prior to the alleged statement to the sheriff. Under this state of case, the evidence was clearly admissible for the purpose of sustaining the witness. This is well settled.
The judgment is affirmed.
Affirmed
Judges all present and concurring.