intercourse, of course you know now what it means, because I have told you? A. Yes, sir. Q. But when you said it at that time, didn't you think that that getting on top of her and going up and down was intercourse? A. No, sir; I didn't have the slightest idea. afternoon, it becomes my duty, and a painful duty it is, too, to enter an order against you in this case like this: "Be it remembered that on the trial of the above entitled and numbered cause came Ola Fincher, as a witness called by the state, and it Q. Well, what did you think that was? A. I appearing to the court that said witness has didn't know. Q. And you didn't think that was intercourse? A. No, sir; I didn't know what intercourse meant, and I asked my mother to tell me, and she said, 'No,' she wouldn't do it. Q. She wouldn't do it? A. No. Q. Well, did you ask if that was doing something that wasn't nice? A. After she said that, that she didn't want me to know what that meant, I didn't ask her any more. Q. You are thirteen years old, are you? A. Yes, sir. knowledge of material facts which she has testified to in the absence of the jury, but which she refused to testify to in the hearing of the jury, and persisted in claiming not to remember, wherefore it is considered by the court that said witness, Ola Fincher, is in contempt of this honorable court, and is attempting by said conduct to hold this court in contempt and without power and authority to compel truthful answers to fair questions; therefore it is considered, ordered, and adjudged by the court that said Ola Fincher be committed to the custody of the Q. Do you feel like you were well treated that sheriff of this county until she purges herself night? A. Yes, sir. Q. Feel like Irene was well treated? A. Well, she might say she was; but I don't think she was myself. Q. You think she lost her virtue that night do you? A. Yes, sir. of this contempt, which may be done by said witness giving answers to the questions aforesaid in truthful, fair manner at any time when the court shall designate that it is ready to hear such witness' testimony, and the clerk of this court is ordered to issue commitment in Q. You know what virtue is? A. No; I don't accordance with this order." know what virtue is. Q. Oh, don't you; you said that before you let's have quiet-didn't you? A. Yes, sir. You may enter this, Mr. Clerk, and enter the commitment. The court will remain in session a few minutes until you get that order. By the Q. Yes; you haven't lost your virtue? A. I way, little girl, the court, of course, will be in don't know what it means. Q. Well, you have never had intercourse with any boys? A. No, sir. Q. You are willing to let the doctor examine you, I suppose, to see if it is true that you haven't had intercourse? A. Yes, sir. Q. Well, it would very much shorten this trial to do that. Mr. Miller: Owing to the lateness of the hour, I would like for the court, if he will, to adjourn until in the morning, and give me an opportunity to have the young lady examined. The Court: Well, I will just hold the court open; I am going to hold the court open until I am satisfied. A. I don't have to, unless I want to, do I? The Court: How's that? A. I don't have to, unless I want to, do I? The Court: Have you decided that you don't want to? A. Yes, sir. The Court: Well, if there is anything else, any other step you care to take the court is open here. Mr. Miller: I want to file, and I will prepare it now, a complaint charging perjury against the girl for testifying falsely in the court here. The Court: All right, the court is open. Mr. Miller: Judge, there is one question I want to base it on that I want to ask her-well, I can base it on this business here and I want to, if the court wants some action taken, to withdraw my announcement of ready for trial in this case. The Court: I don't think you can; we can hold this court open for a year if necessary, and we will do it. Mr. Miller: All right; I would rather do that. The Court: All right. session in the morning at nine o'clock, and will continue in session. I can hold court just as long as I want to, and it will be here whenever you have purged yourself of the contempt in which you are holding the court, this order will be revoked or will be satisfied. Tuesday Morning, August 14th, 9 o'clock a. m. The Court: Do you care to interrogate the witness? Mr. Miller: Yes, sir. The Court: Proceed. Mr. Miller: Q. Miss Ola, you heard the statement read to you by the court and by myself and by the court in detail yesterday evening, did you? A. Yes, sir. Q. And since your memory has been refreshed with reference to the statement made by you on the 9th-I believe it is the 9th day of July of this year-I want to ask you with reference to certain transactions had now. You testified that it was on Saturday night that you were out with Buzz on the back seat of a Haynes automobile east of Amarillo-southeast of Amarillo on a public road near a haystack, the haystack being on the left-hand side of the road and the car was headed south, wasn't it? A. The car was headed north. The Stenographer: How is that? A. The car was headed north. Mr. Miller: Headed north. I will ask you to state while you were out there if you were on your back in the seat of the automobile, back seat? A. You ask me to state what? Q. Whether or not you were lying on your back on the back seat of the automobile? A. When? Q. That night, the night of the 7th, Saturday night, when you were out there near the haystack? A. I don't understand what you mean. Q. Well, you were on your back on the back of the seat, were you not? A. Yes, sir. Q. And he was on top of you, Howard Ven The Court: I am going to have to present an order here; perhaps you had better sit down over there, little girl, a minute (indicating wit Q. Just answer the question: Was Howard law-and it would be a very weak court that Venable on you? A. (No answer.) wasn't able to compel witnesses to come here Q. Huh? Tell the court whether or not he and give testimony. was on you at that time. A. (No answer.) The Court: I don't like-it is a disagreeable thing, of course, to have you to sit here and detail matters of this kind, but there are twelve men waiting here for you to tell that story, whatever it is, and I wish you would go on and say what you have to say. Mr. Miller: Answer the question, Ola. A. The Court: Would you rather have the jury come down at this time, so that when you are through telling whatever your story may be, that you may not have to tell it again? Would 'you rather do that? The jury isn't in here now, you understand. Would you rather they would come down now, before you tell what you have to tell, or not? What is the trouble you don't talk? A. (No answer.) Mr. Miller: Ola, what were you doing on your back on that seat? A. Well, my back was up against the back seat of the car. Q. Well, you said awhile ago you were Mr. Mood: Well, your honor, I am sure that she understood The Court: Now, I don't care to hear from you further, Mr. Mood, 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. Mr. Mood: Well, defendant excepts to the court's refusal to hear a bill of exception. The Court: Most assuredly. Mr. Miller: Now, Ola, you told me yesterday evening that you were coming on the witness stand and testify to the truth about this transaction, and this statement was the truth, didn't you? A. I told you I was going to tell the truth. Q. You told me that this statement was the truth right there yesterday evening about six A. Yes, sir. o'clock. Q. That this statement was the truth, didn't you? A. Yes, sir. Q. Now, I want to ask you if it isn't a fact that Buzz Venable's private male organs penetrated your private female organs; answer that on your back in the seat. Who was on you at question 'Yes' or 'No'; that is in this statethat time? A. Nobody. The Court: Mr. Sheriff, you can take the witness to jail; this court is going to hold open until you decide to talk now, and you are going to be kept in jail, you understand. I can't fritter away the time of the court in this way. I am sure that is a disagreeable thing for you to talk about matters of this kind, but you aren't doing it voluntarily. The court has brought you in here for that purpose, and I suppose that you understand that the district court can pronounce the sentence of death upon a person, actually take the life of a person; you knew that, didn't you? A. Yes, sir. The Court: And for you to sit here and take up the time of the court by being obstinate is very much out of line with right, to say the least of it. Would you want the jury to come back and go ahead and tell what you want to tell, or would you rather go on to jail now. It is just one way or the other. What do you say about it? What are you looking over there for? Mr. Mood: I just arose, your honor; I was waiting until your honor got through; I want to take a bill. The Court: What do you say about it? A. Well, I would rather tell what I have to tell. The Court: How is that? A. I would rather tell what I have to tell. The Court: Do you want the jury to come in, then? A. It don't make any difference to me. The Court: Well, all right; answer Mr. Miller's question, then, and we will see. Mr. Mood: Just a moment; I understand that we have a bill to all the court's remarks? The Court: Oh, yes, sir. Mr. Mood: Especially the threat to send her to the penitentiary and the threat of death. The Court: Sure, that is right; whatever was said. You didn't understand me to say that I was threatening to put you to death, did you? A. Yes, sir. The Court: Well, I didn't mean that at all. I mean that this court is powerful enough to put to death a person-an offender against the 207 S.W.-34 ment, isn't it? A. Yes, sir. Q. All right; did he or not? A. (No answer.) girl? What, are you hesitating about? A. (No The Court: What do you hesitate for, little answer.) Mr. Miller: Ola, you had your cloth on that time, didn't you? A. Yes, sir. Q. He undone the cloth, didn't he? A. No, sir. Burwell and Mr. Johnson that he removed the Q. Didn't you tell me in the presence of Mr. cloth? A. Yes, sir; I told you that in the pres ence of Mr. Johnson and Mr. Burwell. Q. And that is true, isn't it? A. No, sir. Q. And that you were placed upon your back in the back seat of the car, and that he got on your person between your limbs, and that he placed his private male organ in your private female organ; that is true, isn't it? A. No, sir; that is what I told you, though. Q. And you told me that it was true. Now, why is it that you don't say that it is true here? A. Because it isn't. Q. You say you went The Court: I don't feel that the witness has purged herself of contempt, you may-there are some jurors sick- A. I don't want to go to jail. The Court: Go right on to jail. A. I don't want to go to jail. The Court: What? A. I don't want to go to jail. The Court: I know you don't. The Sheriff: Come on, let's go. A. (Witness remains seated.) The Court: Well, what do you want to do? The Sheriff: Come on, we will go down. A. I don't want to go down. The Sheriff: Well, come on; let's go anyhow. The Sheriff: I am sure you don't want to go. treating yourself fair, Ola; that is the great | circumstances of the trial as developed controuble. The Court: Well, what do you say now? When you get through crying, you may talk. Mr. Miller: Now, Miss Ola, I believe you stated awhile ago what was in this statement was true, didn't you? Answer the question 'Yes' or 'No.' Didn't you? You stated what was in this statement that had been read to you by myself and the court was true, didn't you, huh? You can answer that 'Yes' or 'No,' now? vinced the judge beyond all question that the witness, who was a thirteen year old girl, was under the influence of some person. There were two young girls, the defendant and another, involved in the transaction, and the witness was one of the girls. One of the young girls and her mother had gone from the state and were beyond the jurisdiction of the court before subpoenas could be served; and it developed that both the young girls, their mothers and fathers were unfriendly to the prosecution, and The Court: Wait until she gets through cry- were doing everything within their power to ing. prevent a prosecution. The witness Ola Finch- portunity; the court taking a recess and giv- After which proceedings, at 2 o'clock p. m., the jury were returned to the jury box and the examination of said witness continued in their presence and hearing. To all of which proceedings so had as above set out the defendant then and there in open court duly excepted, and here now tenders this his bill of exception No. 1, and prays that the same be approved, ordered filed, and made a part of the record herein, which is accordingly done, and the above bill of exceptions is prepared largely in verbatim form; the court being of the opinion that such questions and answers are necessary in order to elucidate the facts and questions involved." The foregoing bill is approved with the following qualifications: The witness Ola Fincher had not testified fully with reference to the automobile trip and had not been directly interrogated as to an act of sexual intercourse between her and the defendant, but she was answering questions leading up to the main issues in a way which clearly indicated her leaning towards the defendant, which she admitted in the trial of the case. She was very much opposed to the prosecution, and admitted on the stand that she did not want the defendantness, and they availed themselves of the oppunished. 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 district attorney was undertaking to have the witness testify concerning matters which would have been wholly irrelevant and immaterial, except for the purpose of showing the jury the kind of witness before them, in order to enable them to pass upon her credibility and to test her memory, when he said: "Do you remember Mr. Ritchey, 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. 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." Then the transcript of the testimony taken before the court of inquiry was exhibited to the witness, and she was examined quite at length by the district attorney, court, and the district attorney's law partner, 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 had 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 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. Hugh L. Umphres, Judge. H. G. Hendricks, Kimbrough, Underwood & Jackson, and A. M. Mood, all of Amarillo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. 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 with her. It is uncon DAVIDSON, P. J. Appellant was convict-troverted both by prosecutrix and her moth ed of rape on a girl under 15 years of age, the facts showing that she was between 13 and 14 years of age. [1-3] There is a very lengthy bill of exceptions found in the record, covering nearly 40 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 20 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 overnight, and the subsequent threat to send her to jail, she testified in accordance with their wishes; but before and after so stating she er 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. cussion of the case is not further indulged, as it is a case so nearly within the Hamilton Case, 68 Tex. Cr. R. 419, 153 S. W. 331, 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. A dis PRENDERGAST, J. (dissenting). Appellant, a young man 21 years old, was convicted of the rape of Ola Fincher, a girl just over 131⁄2 years of age. His punishment was assessed at 5 years in the penitentiarythe 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 refer-ence to said witness while before the court alone. His two bills on this matter are very lengthy, more than 40 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 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." Section 988, White's Ann. Code Cr. Proc. 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 Tex. App. 282, 34 Am. Rep. 746, said: "True a judge, technically speaking, may not be a representative of the state in prosecuting parties charged with crime; but he is neverthe * * * Hold less an officer of the state, charged with the high and responsible duty of seeing that the law is faithfully administered. ing 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, 107 Tex. 1, 106 S. W. 331, held and quoted 8 Am. & Eng. Ency. 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 Holman v. Mayor, 34 Tex. 672, it is said: 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: lawful questions is inherent to all courts of "The power to compel a witness to answer record." In 1 Thompson on Trials, § 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 discrethe knowledge of the character of the witness tion must be governed in a great measure by 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 has a large discretion, which, if exercised without abuse, will not be error." In 5 Jones on Ev. § 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 testi. fy 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 willful 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 131⁄2 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 "The refusal of a witness to answer a legal and proper question is a decided contempt; and no matter in what respectful terms, or deference of manner, the refusal is made, he stands out |