of filing the complaint. But the facts in the Wyler Case and the reasoning in the opinion have no application to a case where there is but one cause of action, which is defectively stated and the defect cured by amendment." 162 Wis. 425, 156 N. W. 486, L. R. A. 1916D, 318.

The United States Supreme Court, on May 20. 1918, denied a petition for a writ of certiorari to the Supreme Court of Wisconsin to review its judgment in Curtice's Case. C. & N. W. Ry. Co. v. Curtice; 247 U. S. 510, 38 Sup. Ct. 578, 62 L. Ed. 1242.

Under the settled rules of pleading and practice in this state, the right to amend, so as to defeat limitation, when interposed against the cause of action which accrued, under the federal statute, to the representative of Pope's estate, cannot be doubted. Thouvenin v. Lea, 26 Tex. 615, announces the principle, always adhered to by this court, that

"The very object of an amendment is to sup

ply the omissions of the original pleadings. And it never has been supposed that the statute of limitations would present any impediment to its being done at any time during the progress of the cause. The statute only operates as a bar when it is sought under the name of an amendment to present a new suit." Tribby v. Wokee, 74 Tex. 144, 11 S. W. 1089.

The principle has been repeatedly applied in Texas to save causes of action from the bar of limitation, when such causes of action were presented in amendments filed after the expiration of the statutory period, notwithstanding the original pleadings, which were filed within the statutory period, were so lacking in averments essential to the statement of a cause of action as to be bad on general demurrer. W. U. Tel. Co. v. Smith (Civ. App.) 146 S. W. 333; Boyd v. Beville, 91 Tex. 443, 444, 44 S. W. 287; Bigham v. Talbot, 63 Tex. 273.

the plaintiff is entitled to the judgment, although his own pleading, taken by itself is insufficient." Ry. Co. v. Anderson, 76 Tex. 252, 13 S. W. 196; Fertilizer Co. v. Bank, 104 Tex. 191; Ry. Co. v. Miller (Tex. Civ.) 128 S. W. 1170; Ry. Co. v. Fife (Civ. App.) 147 S. W. 1186.

The following are among the cases which apply the rule stated to facts in all material respects like those of this case: King v. Norfolk & S. R. Co. (N. C.) 97 S. E. 30: Curtice v. C. & N. W. R. Co., 162 Wis. 421, 156 N. W. 484, L. R. A. 1916D, 318; White v. Central Vermont Ry. Co., 87 Vt. 330, 89 Atl. 621. In affirming the judgment of the Supreme Court of Vermont in the latter case, the United States Supreme Court announced that the decision of the state Supreme Court with respect to aider of a pleading seeking to recover damages for a death under the federal Employers' Liability Act, by an allegation in an answer thereto and

by a replication to such answer, being “on

a matter of state pleading and practice, is binding on this court." Central Vermont Ry. v. White, 238 U. S. 513, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252.

The judgments of the district court and of the Court of Civil Appeals will be reversed, and the cause is remanded to the district court for further proceedings, not inconsistent with this opinion, and without prejudice to such rights as a personal representative of Thos. A. Pope, the deceased, may have.

In action for death of her husband, amend

ed petition, whereby wife as administratrix was substituted for former plaintiff and whereby she expressly alleged that defendant was engaged, and deceased was employed, in interstate commerce, at date of fatal injuries, held not such departure from original petition as would prevent amendment from relating back to filing of original petition.

The law, which must control here, is clearly expressed in Hill v. George, 5 Tex. 89, where the statement in Gould on Pleading is approved to the effect that:

"If one party expressly avers or confesses a material fact omitted on the other side, the omission is cured. It may thus be made to appear, from the pleadings on both sides, that

S. Comp. St. 1916, §§ 8657-8665), cause of action in case of death does not accrue until appointment of a personal representative of deceased, and, where deceased's wife filed petition within two years after she was appointed administratrix, action was not barred. 3. APPEAL AND ERROR

INTERMEDIATE COURT.

1114-DECREES TO

sidered under its former disposition of the case, the cause will be remanded to said court for its further action on such assignments of error; its judgment being reversed.

Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; T. & N. O. R. Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 157. And the principal contention of defendant in error is that the addition of the averments

GREENWOOD, J. Plaintiff in error recovered a judgment in the trial court, against defendant in error, for damages for the death of her husband, which was reversed by the Court of Civil Appeals, and judgment was rendered for defendant in error, upon the ground that plaintiff in error's cause of action was barred by two years' limitation, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). 196 S. W.

It is agreed by both parties that defendant in error was engaged in interstate commerce, and that the husband of plaintiff in error was employed in interstate commerce, when he met his death; but the original petition

contained no averment of these facts.

On June 3, 1914, plaintiff in error was appointed and qualified as administratrix of the estate of her deceased husband, and thereafter, on April 17, 1915, she filed an amended petition in this suit, whereby she as administratrix, was substituted for the former plaintiff, and whereby she expressly alleged that defendant in error was engaged, and deceased was employed, in interstate commerce, at the date he received the injuries causing his death, as the proximate result of certain acts of negligence on the part of defendant in error and on the part of fellow servants of the deceased.

There was no such departure between the allegations of the original petition and of the amended petition, with respect to the negligence relied on for a recovery, as would prevent the amendment from relating back to the filing of the original petition. T. & P.

the deceased having been engaged in interstate commerce introduced a new or different cause of action, which was barred by the lapse of more than two years from the death of the deceased before the filing of the amended petition.

We cannot approve this contention. Our reasons are fully given in the opinion of this court, filed to-day in the case of Pope v. K. C., M. & O. Ry. Co. of Texas, 207 S. W. 514.

[2] There is an additional reason, which precludes us from sustaining defendant in error's contention, and that is, in our opinion, the cause of action, given by the federal Employers' Liability Act, in case of death, does not accrue until the appointment of a personal representative of the deceased, and, in this case, the administratrix filed her amended petition within two years from the date of her appointment.

The opinion of the United States Circuit Court of Appeals, for the First District, in the case of Am. R. Co. of Porto Rico v. Coronas, 230 Fed. 545, 144 C. C. A. 599, L. R. A. 1916E, 1095, contains such a convincing review of the authorities and such a cogent statement of the grounds for the court's conclusion that we are content to merely refer to that opinion, with the following quotation therefrom, viz.:

"It is to be noted that the statute does not

require that the action shall be brought within two years from the death, but within two years

from the time the cause of action accrued. It is also to be noted that the action is not for the occurrence out of which the death arose, but for the pecuniary damages to the beneficiaries, due to the death; so that in no event could the cause of action arise until after the death, or be said to exist so that the statute could run until after that time. We may therefore assume that the statute, so far as this cause of action is concerned, did not begin to run until after death had ensued.

"It is a general rule of law that where a cause of action arises, as in this case, after death, it is considered as accruing, for the purpose of the running of the statute, only from the time when there is some one in existence ministrator can sue, that the statute does not capable of suing, and, if no one but the adbegin to run until administration is granted. This principle was announced at an early day. The leading English case on the subject is Murray, Administrator, v. East India Co., 5 Barn. & Ald. 204 [24 Revised Rep. 325], which has been very generally followed in this country. heretofore pointed out as to when a right of acIn view of the well-recognized rule tion accrues-which Congress must have had in mind when enacting the present law-and in view of the fact that Lord Campbell's Act, upon which the Employers' Liability Act was model

ed, expressly provided that the limitation should run from the death of the injured party, and that, in the enactment of the present law, Congress declined to adopt such a limitation, and fixed the period from the time the action accrued, we are of the opinion that the proper construction of the statute is that the right of action did not accrue, so that the limitation attached, until the administrator was appointed."

[3] It follows that the Court of Civil Appeals erred in rendering judgment for defendant in error, and its judgment is reversed; but, since defendant in error is entitled to have other assignments of error consider ed by the Court of Civil Appeals, which it concluded need not be considered, under its former disposition of the case, it is therefore ordered that this cause be remanded to the Court of Civil Appeals for its further action on the assignments of error not heretofore passed upon. Manning v. Ry. Co., 107 Tex.

563, 181 S. W. 687.

VENABLE v. STATE. (No. 4758.)

(Court of Criminal Appeals of Texas. Dec. 11, 1918.)

1. CRIMINAL LAW 706- MISCONDUCT OF PROSECUTING ATTORNEY-EXAMINATION OF

WITNESSES.

Howard Venable was convicted of rape, and he appeals. Reversed, and cause remanded.

Defendant's bill of exceptions No. 1, hereinafter by the court directed to be included in the report of this case, is as follows:

Be it remembered that on the trial of the above entitled and numbered cause, and after the selection and impaneling of the jury, the reading of the indictment, and the entering of the defendant's pleas of not guilty, and after the witness Ola Fincher, the prosecutrix herein, had been by the state placed upon the witness stand, and after she had been examined as to an automobile ride, she, the defendant, one Irene Tucker, and one Von Rosenberg had taken on the night of the 7th and morning of the 8th day of July, 1917, and prior to the time she had been asked whether or not the defendant had ever had sexual intercourse with her on said trip, and prior to the time she had been given opportunity to answer whether or not the defendant had ever had sexual intercourse with her on said trip or on any other occasion, but after she had detailed said trip and had told certain places where the said automobile party had gone, the following proceedings were had, and parts of the proceedings had are set out in verbatim form herein, because the court and counsel deem it necessary to set out the questions in order to better elucidate the proceedings:

The district attorney asked the witness whether she remembered telling the grand jury of Donley county something, and she answered in the affirmative, whereupon the question was asked the prosecutrix whether or not that was the truth, whereupon counsel for the defendant objected to the question in the following language: "Now, your honor, we' object to that; we believe it is improper, and, if it is for the purpose of impeachment, it is certainly improp

on must be reversed.

2. CRIMINAL LAW JUDGE.

655(1)-MISCONDUCT OF

Where the trial judge mainly in the absence of the jury reminded prosecutrix in a rape case, a girl under 15 years of age, that he had power to inflict the death penalty and had just sent a woman to the penitentiary, and committed prosecutrix to custody overnight, and subsequently threatened to send her to jail unless she repeated former testimony which she said was false and induced by coercion and which she finally repeated, judgment of conviction must be reversed.

3. CRIMINAL LAW

553-CREDIBILITY

immaterial, and prejudicial.. We don't understand-I don't know what the purpose of the testimony is for, unless it is for impeachment purposes, and certainly is no predicate here that would justify an impeachment of his own witness." Whereupon the court instructed the sheriff to retire the jury, and the jury left the box in charge of the sheriff. "You may read the statement to the witness; now pay attention to it." And the district attorney immediately began reading to the prosecutrix a statement purporting to have been made by her in a court of inquiry as follows: Be

Appeal from District Court, Armstrong County: Hugh L. Umphres, Judge.

ary, A. D. 1917. I live in Amarillo, Potter county, Texas, at No. 1607 Buchanan street. My father's name is W. F. Fincher. My mother's name is Deamon Fincher. I was in Amarillo on Saturday night, July 7, 1917. I left home that evening on the 8:15 car, and left town at 8:30 p. m.' At which point in the proceedings had in this cause the defendant objected to the retirement of the jury in the following language:

Mr. Mood (counsel for defendant): Mr. Miller, just a moment. Your honor, we will want a bill of exceptions to your honor's retiring the jury.

Jacinto, and they got out to see how much gasoline we had. They found that it had run nearly empty; then we came up to the oil station on Taylor street, Pierce Fordyce filling station, and we got some gas and filled up the tank. We then went and took Mr. Wilson around to the Texan, the hotel where he stays. That left Mabel, Buzz, Von Rosenberg, Irene, and myself in the car. We then rode around up Polk street, and then we went on home. Mabel and I both started to get out. Mabel got out, and Irene said, 'You are not going to leave me with both of the boys by myself?' Mabel says, 'I have to go to work in the morn

Whereupon the district attorney continued the reading of the same statement he had started to read to the witness, as follows:

"After getting off the car I came around to work with my sister, Mabel Fincher, at Nick's place on Taylor street, and then I went to the show. I went to the Deandi Theater. We stayed until after the vaudeville performance, and then Irene Tucker and Mr. Gray drove up in front of the Deandi and asked us if we did not want to ride around. Nobody went with me to the show. I was by myself when I came out. After getting into the car we drove around up town with Irene Tucker and Mr. Gray and myself in the car, we drove around until time for sister to get off from work. It was 11 o'clock p. m. when we got my sister Mabel. I was still with Irene and Mr. Gray in the car. It was a Ford car, and we three were all that were in the car at that time. My sister Mabel then got into the car. The sailor boy and Mabel got into the car, and we all went around to the Deandi and got Billie Wilson. He got into the car with us at the Deandi Theater. After that we just drove around in the business part of town. We did not ride very long; we drove awhile and then went to the Santa Fé depot to get some sandwiches; but we did not get any. While we were at the Santa Fé depot Buzz Venable drove up. He, Buzz Venable, called me, Ola Fincher, out to the car. He said to me, 'Ditch the boys; let's us, your sis, and Irene go riding.' I said, 'No, I won't do it.' So we all started up in the Ford again and drove out the Herring loop and back, and Buzz and Rosenberg followed us around. He drove up by our car and said to me, 'Meet us at the Golding drug store in ten minutes.' That was about 11:30 p. m. did not say anything to him. We drove back out by the Sanitarium, and we turned around, and the driver, Mr. Gray, got mad at us. He had heard Buzz say 'Meet us at the Golding Drug.' He said, 'I will just put you out there; and he put us out at the Golding Drug. All of we girls and Mr. Wilson got out at the Golding Drug. After we got out at the Golding Drug, we started to walk home, and Buzz and Von Rosenberg drove up about the Methodist Church, and we got in the car. Mr. Wilson, Mabel, Irene, and I all got into the car with Buzz and Von Rosenberg. After we got in the car we drove out east of town; we went out by Herring's, nearly to Canyon, Texas. We got off of the Canyon road, and went away west. I don't know just where. We rode about two or three hours out that way, and then we came back to town. We were out here in San

with you;' and I said, 'I am not going to stay with you;' and when I started to get out she pulled me back, and Irene said, 'I wouldn't go home for $100.' Sis said, 'I will tell mother that you stayed all night with Slim.' Slim is Effie Rose. I know that her first name is Effie. I think her last name is Rose. They drove up, and we started on, Buzz, Von Rosenberg, Irene, and myself. We drove out by Glenwood park, we went on past it, and then turned east down that public road. The public road is a quarter of a mile south of the park. We went east a long way; I don't know how far; it was about three miles east down the road. They stopped the car down there east somewhere, and Buzz was asleep, with his head in my lap, and his feet was in the other part of the car; we were on the back seat. Irene and Von Rosenberg were on the front seat. It was then that Von Rosenberg had intercourse with Irene there on the front seat of the car. Irene was lying down across the front seat of the car, on her back, and Von Rosenberg was lying on top of her, with his face toward her face. I went to sleep, and when I woke up he was going up and down on her. That was before we went south. When I woke up he started to drive the car, and he drove south, and we went in that direction about a mile. They then stopped the car again. They stopped by a haystack; the haystack was just inside the fence. I mean Von Rosenberg and Irene went to the haystack. Before Von Rosenberg and Irene went to the haystack, Buzz Venable had his hand on my person up under my dress. They went to the haystack. Buzz 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

No

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. officer of the court has told me what 'inter I know what intercourse means. course' is. 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 organ, 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. [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 some pain from the act. I told him that it hurt me. The hurt was the greatest at the opening of my female organs. I told him that it was hurting me, and he got up; however, his male member went clear on in to 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 20 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 50 miles per hour; then we went to Cliffside. We came to town and stopped at the post office. Buzz and Von Rosenberg went up in the St. Charles Apartments. They brought out one quilt. They got in the car, and we came around to the Merchants' Café on Taylor street and got some sandwiches. We girls did not get out of the car. We then went out past Cliffside to the bridge across Amarillo creek; it was about 5 o'clock in the morning when we got out there. Just before we got to Cliffside, Buzz 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 20 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. I did not have intercourse with Von Rosenberg. We did not stay out there very much longer. We drove on out west after that. The reason we left was that we saw a car coming, and that car passed us. Louis Finklea and Mollie Carder passed by us. I did not hide. They passed us in a hurry. We stopped at a gate, drove into the field, and then we turned around and came back out of the field. We did not stop in the field. We came on back to town. Buzz gave Irene $2 and told us to go to a hotel. I said, 'I do not want to go to a hotel; I want to go home;' but Irene said that she was not going home, and would not let me leave her, so we went to the Cobb Hotel, 201 North Taylor street, in Amarillo. They left us there. We stayed from that morning till about 4 o'clock p. m., when I called Mabel, and told her to come on over there. I said that I was going home, and I went on home with Mabel. Irene said, 'No, don't go home and leave me here;' and I said, "The best thing for you to do is to go home, too.' But she did not go home. We left her there, and I have not seen her since. This is the 9th day of July, 1917, and I am well now, and I am not sick. I took my cloth off this morning. I think that the cloth is burned up. I

am not sure that it has been burned. None of my clothing have any blood on them. My sickness came on me last Friday morning. Mr. Mood called up this morning, and my mother said that she did not want anything done about this matter. He called her over the telephone. 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. Ola Fincher.

"The cloth that I used was a white, cotton cloth; it did not have much blood on it. If it has not been destroyed, I will save it. Ola Fincher.

"Sworn to and subscribed to before me this the 9th day of July, A. D. 1917. C. G. Landis, Justice of the Peace, Precinct No. 1, Potter County, Texas. Sitting as an examining Magistrate."

After the reading of which statement the following proceedings were had:

"The Court: You may proceed with the interrogation.

Mr. Miller: Q. Miss Ola, do you remember Mr. Burwell on the morning of the 9th; that was Monday morning, wasn't it? A. Yes, sir. Q. Coming out to your home and bringing you down to Mr. Johnson's office? A. Yes, sir.

Q. Up to that time, Ola, you had not communicated with any one at all with reference to this particular transaction, had you? A. No, sir.

Q. You came down there, and we told you that the truth was what we were after, didn't we? A. Yes, sir.

Q. And we told you that Irene had told us what transpired on the night of the 7th, Saturday night, didn't we? A. Yes, sir.

Q. And we asked you if that was true, didn't we, in Mr. Johnson's office? A. I don't remember that.

Q. And you said, 'Yes, it is true,' didn't you? A. I don't remember.

Q. Do you remember relating to us the fact, leaving out the formal part of that you have already related, that Buzz had his head in your lap? A. Yes, sir; I remember that.

Q. And he was asleep, and that while asleep Von Rosenberg had intercourse with Irene on the front seat, did you? Didn't you do that? A. Yes, sir; I remember that.

Q. You remember that. You remember telling us that you were awake and that you saw it, and you remember then saying that they started up the car and turned south out of the east road-road running east and west-and turned south about a mile, and when you stopped there Irene and Von Rosenberg got out of the car and went to the haystack, and while Von Rosenberg and Irene were getting out of the car at that time Howard Venable had his hand underneath your clothing; that is true, isn't it? A. I don't remember.

The Court: Now, just a moment; let me see that, will you? A. I do not remember saying that

The Court: Now, don't-you are under oath now, and let's just be careful about this. You signed that, did you (exhibiting paper to witness)? A. Yes, sir.

The Court: Swore to it? A. Yes, sir.
The Court: Well now, let me tell you some-