
    GILL v. STATE.
    (No. 10717.)
    Court of Criminal Appeals of Texas.
    March 30, 1927.
    Rehearing Denied May 4, 1927.
    Application to Eile Second Motion Denied June 8, 1927.
    1. Criminal law <&wkey;1056(1) — Trial court’s refusal of special charge is not reviewable without exception.
    Defendant is not entitled to review of court’s refusal to give a special charge, where no exception is taken to the refusal.
    2. Rape ¡&wkey;24 — Indictment charging intercourse with female under 18, not defendant’s wife, is sufficient under statute without allegations of force.
    Indictment charging that defendant had intercourse with a female under the age of 18, who is not his wife, is sufficient under the statute, without allegations of force, threats, fraud, or want of consent.
    3. Rape <&wkey;>49(I) — Witnesses &wkey;>396(() — Prosecutrix’s testimony of love for defendant held admissible to explain denial of intercourse and refute impeachmént.
    Prosecutrix’s testimony that she loved defendant at time allegations of indictment for rape were made held admissible to explain why she had, at the time of his arrest, denied intercourse, and where the defendant sought to impeach her by proof of the denial.
    4. Criminal law <&wkey;>1092(11) — Court of Criminal Appeals would consider bill independently of judge’s qualification, to which exception was taken.
    Court of Criminal Appeals would consider bill of exceptions independently of trial judge’s qualification, to which exception was taken.
    5. Criminal law &wkey;l 169(2) — Permitting pros-ecutrix’s testimony in case in chief, that defendant was married, held not error, in view of evidence of fact adduced by defendant.
    Permitting prosecutrix to testify in case in chief that defendant was married held not error, where other testimony brought out by the defendant showed the fact.
    6. Criminal law <&wkey;l 169(2) — Where evidence is admitted without objection, admitting equivalent evidence will not be held error.
    Where evidence is admitted without objection, the admission of the same or equivalent evidence from other witnesses will not be held reversible error.
    7. Rape <&wkey;40('5) — Evidence of prosecutrix’s previous unchastity is properly excluded, when she was less than 14 years of age at time of offense charged.
    Evidence, for the purpose of showing .pros-ecutrix was not of previous chaste character, is properly excluded, where she was under 14 years of age at the time of the offense charged in the indictment.
    8. Criminal law <&wkey;l 170(2)— Excluding evidence of prosecutrix’s previous Unchastity held not error, even if admissible, where fact sought to be shown was testified to by other witnesses.
    Excluding evidence of previous unchaste character of prosecutrix, who was less than 14 at time of offense charged, held not error, even if evidence was admissible, where substantially the same evidence excluded was brought out by defendant on cross-examination of prosecu-trix’s father.
    9. Witnesses <&wkey;330(l) — County attorney was properly permitted to ask witness whether testimony as changed was true, where state had rested.
    County attorney was properly permitted to ask' defendant’s witness, who stated she had changed her testimony, whether she had changed it' to anything untrue, where the state had rested its case.
    10. Criminal law <&wkey;396(2)— State may show whole conversation between county attorney and «fitness, alluded to in testimony after state rested.
    Where defendant’s witness has gone into conversation that took place between the county attorney and the witness, the state may, though it has rested case, show on cross-examination the entire conversation.
    11. Witnesses i&wkey;4l4(2) — Letters to defendant from prosecutrix held admissible in corroboration of her testimony, where defendant sought to impeach testimony.
    Endearing letters, written to defendant by prosecutrix, held admissible in corroboration of her testimony, where defendant sought to impeach the truth of her testimony and letters indicated happening of offense charged.
    12. Rape <&wkey;54(l) — Conviction for rape of female under age of consent may be sustained, though victim’s testimony is uncorroborated.
    In a prosecution for rape on a female under the age of consent, a conviction may be sustained on the victim’s uncorroborated testimony.
    On Motion for Rehearing.
    13. Rape <&wkey;52(l)-Evidence held to sustain conviction for rape of female under the age of consent.
    Evidence held to sustain conviction for rape on a female under the age of consent.
    14. Criminal law <&wkey;447 — Recitals will be considered in connection with other evidence of same facts to determine letter’s date.
    Recitals of a letter will be considered in connection with other evidence relating to the same facts, in determining whether the letter was written at the time it bears date.
    Commissioners’ Decision.
    Appeal from District Court, Clay County; Vincent Stine, Judge.
    C. E. Gill was convicted of rape, and he appeals.
    Affirmed.
    Taylor, Muse & Taylor, of Wichita Palls, for appellant.
    
      W. J. Glasgow, of Henrietta, and Sam D.' Stinson, State’s Atty., and Robt. M, Ryles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of the offense of rape, and his punishment assessed at five years in the penitentiary.

The state relied for conviction upon the testimony of the prosecutrix, Nellie Scarber, who testified that she was under 14 years of age; that she knew the appellant, O. E. Gill; that appellant had sexual intercourse with her in the month of May, 1926; that, at the time appellant had sexual intercourse with her, his private parts penetrated her private parts. The state also introduced three letters written by the appellant to the prose-cutrix.

The appellant did not testify, but relied upon testimony which tended to show that the evidence of the prosecutrix was unreliable and was not of sufficient cogency to warrant the jury in returning a verdict of guilty.

No exceptions and objections to the court’s main charge appear in the record. However, we find in the record three special charges. Special charge No. 1 was refused by the court; special charges Nos. 2 and 3 were given. The learned trial judge very properly refused to give special charge No. 1. However, as there is no exception to the court’s refusal to give this charge, the ruling of the trial court is not entitled to be reviewed. Nichols v. State, 91 Tex. Cr. R. 277, 238 S. W. 232; Martin v. State, 100 Tex. Cr. R. 376, 272 S. W. 791; Thomas v. State, 100 Tex. Cr. R. 288, 273 S. W. 571.

Appellant filed a motion in arrest of judgment, complaining that the indictment did not contain the elements of the statute regarding the question of the act being done “through force, threats, and fraud,” and that the indictment did not charge whether the act was with or without the consent of the prosecutrix. The indictment charged that the appellant had intercourse with a female under the age of 18, who was not his wife. This constitutes an offense under the statute.

Bill of exception No. 1 complains because the state was permitted, over appellant’s objections, to ask the prosecutrix the following question: “At the time these allegations were made, you were in love with Gill?” Appellant’s objection was overruled, and the prosecutrix was permitted to answer as follows: “Yes, sir; I loved him.”

The trial judge qualified this bill of exception, but the appellant excepted to said qualification. Therefore this court will consider the bill independent of the qualification. Appellant’s contention is untenable. It was the contention of the appellant that he merely treated 'the prosecutrix as he did members of his own family, and that prosecutrix had fabricated her testimony in order to convict appellant. Previous to the propounding of the question and the answering of same as complained of in the bill, appellant’s counsel had asked prosecutrix if she was mad with the appellant. Appellant had also sought to impeach and discredit prosecutrix’s testimony by showing that when she was first arrested she stated that appellant had not had intercourse with her. We think the state had a right to show what her attitude was toward the appellant and to explain why she first stated that appellant had not had intercourse with her.

By the next bill of exception, which is not numbered in the record, appellant complains that, while the state was offering its testimony in chief, and while the prosecutrix was on the witness stand, she was asked, on direct examination, the following question: “Do you know whether or not the defendant is a married or a single man?” Whereupon the witness answered, “Yes, sir;” and the district attorney then asked, “What is he?” to which the witness answered, “He is married.”

We are unable to agree with appellant’s contention that this bill shows error, for the reason that the record discloses other testimony showing and tending to show that the appellant was a married man, which testimony was brought out by the appellant. The witness Jewell Gill, a witness for the appellant, testified on direct examination as follows.:

“C. E. Gill is my father. This is my mother sitting here. * * * I never saw my father and Nellie Scarber in any kind of compromising position.”

During her direct examination by the appellant, she referred to the appellant many times as being her father. She further testified:

“My father’s family consists of six girls and four boys. There were ten of us at home in May, 1926, living in the house.”

Again we find in the record where the appellant, on recross-examination of the prose-cutrix, elicited the following testimony:

“As to whether I ever told Mr. Gill of my father’s conduct towards me — I told his wife I know. I don’t remember whether I told Mr. Gill or not. I did tell Mrs. Gill.”

The rule is that, where evidence is admitted without objection, the admission of the same or equivalent evidence from other witnesses will not be held reversible error. Campbell v. State, 89 Tex. Cr. R. 243, 230 S. W. 695; Flores v. State, 89 Tex. Cr. R. 506, 231 S. W. 786; John Abies v. State, No. 10449, 291 S. W. 554, opinion December 27, 1926.

By the next bill of exception, which also is not numbered in the record, the appellant complains at the action of the learned trial judge in not permitting the appellant to prove on cross-examination of the prose-, cutrix that she had testified upon the trial of her father that her father had had intercourse with her, and that the Jury returned a verdict of not guilty against her father. We are unable to agree with this contention. If the prosecutrix had been between 15 and IS years of age, the evidence excluded would' have been admissible for the purpose of showing that she was not of previous chaste character, but the undisputed evidence shows that the prosecutrix was under the age of 14 years at the time of the alleged rape. However, the appellant, on cross-examination of the father of the prosecutrix, proved by him that he was tried by a Jury and acquitted after the prosecutrix herein had testified against him. This is substantially the same fact that was sought to be proved by the cross-examination of the prosecutrix.

Bill of exception No. 3 complains of the action of the trial court in permitting the county attorney to ash the witness Mrs. Mary McCracken, after she had stated that she had changed her testimony, to state whether or not she had changed it to anything that was untrue. We are unable to agree with appellant’s contention in this bill, for the reason that the state had rested its case, and. the witness Mrs. Mary McCracken was a witness for the appellant. The facts testified to by the said witness could have served but one purpose, and that was to impeach the county attorney, who had up to that time not testified, but who later testified at the instance of the appellant. We believe that the county attorney had the right to discredit this witness by cross-examination, and, the appellant having gone into the matter and the conversation that took place between the county attorney and the witness, the state certainly had the right to show the whole conversation.

The remaining bills of exception complain of the introduction of letters written by appellant to the prosecutrix, in endearing terms, which tend to show intimacy between the appellant and the prosecutrix. We are unable to agree with appellant’s contention. We have read the letters carefully, and there is but one conclusion to draw, and' that is that the letters unquestionably throw light on the issue as to whether or not appellant had intercourse with the prosecutrix. The record discloses that the appellant had introduced evidence tending to impeach the prosecutrix as to truth and veracity, and, this being true, it was not error for the trial court to permit the introduction of the letters by the state in support of her testimony.

Appellant also makes the contention that the evidence is insufficient, in that the testimony of the prosecutrix is not corroborated, and also contends that the court should have instructed the jury that it was necessary to corroborate the evidence given by the prosecutrix. We do not agree with this contention. Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783.

The facts being amply sufficient to support the verdict of the jury, and there being no errors in the record, the judgment of the trial court is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

This court does not feel authorized, in the light of the evidence adduced upon the trial, to hold that the jury’s verdict is not supported. There is direct testimony from the alleged injured party to the effect that the appellant committed the criminal act. There are corroborative circumstances, including the letters of the appellant, which aid in overcoming the presumption of innocence.

The offense occurred in May, 1926. One of the letters written by the appellant to the prosecutrix bears date May 24,1924. Appellant insists that, assuming the date named to be correct, the letter was too remote. We are not prepared to regard this as a tenable objection. However, the letter itself, taken in connection with the statement of facts, bears evidence that the date is not the correct one. The postscript to the letter reads thus: “Had two killings at Skaling’s ranch. Harry Skaling is dead.”

The justice of the peace testified that the killing of Harry Skaling took place on May 23, 1926. The prosecutrix gave testimony showing that the letter reached her at about that date.

In the light of the record, we are of the opinion that the court 'committed no error in receiving the letter mentioned in evidence, nor have we perceived any matter of procedure in which the rights of the appellant were not safeguarded.

The motion for rehearing is overruled.

On Application for Leave to File Second Motion for Rehearing.

LATTIMORE, J.

Responding to appellant’s application for leave to file second motion for rehearing, both our original opinion and the opinion on rehearing, and the facts and the contentions made by appellant, have again been carefully reviewed. We think the case correctly disposed of, and that none of the contentions have been overlooked or improperly decided.

The application will be denied. 
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