
    BOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal- Daw (§ 1091) — Presentation and Reservation in Lower Courts op Grounds op Review — Exceptions.
    In a prosecution for rape, defendant’s bill of exceptions to the part of the charge defining rape, merely because it was not applicable to the facts and did not correctly state the law, was too general.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2883, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Rape (§ 41) — Admissibility op Evidence —Age op Female.
    In a rape prosecution the girl was properly permitted to testify as to her age, though she did say on cross-examination that she was 14, because her mother had told her so; its weight being for the jury.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 60; Dec. Dig. § 41.]
    3. Criminal Law (§ 1169) — Harmless Error —Admissibility op Evidence.
    Error, if any, in permitting the girl, in a prosecution for rape," to tell and show that the Bible showed her age was harmless, where defendant himself testified that she was under 15.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    
      4. Criminal Law (§ 1111) — Presentation and Reservation in Lower Court of Grounds of Review.
    Where the trial court in approving defendant’s bill of exceptions qualified it, and defendant accepted it as thus qualified, he was bound thereby.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § .1111.]
    5. Criminal Law (§ 1059) — Appeal and Error-Bill of Exceptions — Specification of Errors.
    Where, in a rape prosecution, the evidence of the girl, the prosecuting witness, constituted 48 typewritten pages, and defendant in one bill objected to a whole mass of the testimony, without pointing out any specific error, the bill presented no error; a part of the evidence being admissible.
    [Ed. Note. — F'or. other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.]
    6. Criminal Law (§ 366) — Admissibility of Evidence — Res Gestas.
    Evidence, in a prosecution for rape, of the attending circumstances held properly admitted as a part of the res geste of one particular act.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dee. Dig. § 366.]
    7. Criminal Law (§ 1091) — Appeal, and Error-Bill of Exceptions — Specifications of Errors.
    In a prosecution of defendant for rape of his daughter, defendant’s bill, which merely objected that the girl was permitted to testify that she told her mother, and did not tell her sooner because defendant threatened to kill her, presented no error.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    8. Criminal Law (§ 366) — Admissibility of Evidence — Res Gestas.
    In a prosecution of a father for the rape of his daughter, the daughter was properly permitted to testify that the acts were without her consent; it being admitted as a part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    9. Rape (§ 43) — Admissibility of Evidence.
    In a rape prosecution, evidence of physicians who examined the sexual organ of the girl was properly admitted upon the issue of penetration, the length of time intervening between the act and the examination not affecting the admissibility of the evidence, but its weight.
    [Ed Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    10. Rape (§ 46) — Admissibility of Evidence.
    Where, in a prosecution of a father for the rape of his daughter, the daughter testified that it occurred about 8 o’clock in the evening, while her mother was at a neighbor’s, and defendant testified that his wife was not away from home that evening, testimony of the neighbor was admissible to rebut defendant’s testimony.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    11. Criminal Law (§ 358) — Admissibility of Evidence.
    * Where, in a prosecution of a father for the rape of his daughter, the daughter testified that it occurred about 10 o’clock one morning, and defendant testified that on that morning he left home at 9 o’clock to go to a neighbor’s to help kill a hog, testimony of the neighbor was admissible in rebuttal of defendant’s testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 763; Dec. Dig. § 358.]
    12. Criminal Law (§ 1091) — Appeaj>-Bill of Exceptions — Specification of Errors.
    Where the record contained several requests by defendant, none of which were numbered, defendant’s bill, merely complaining of the court’s refusal to give Ms request, without otherwise identifying it, was too general.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    13. Rape (§ 59) — Instructions—Conformity to Evidence.
    In a rape prosecution, where the evidence showed penetration, it was not error to refuse defendant’s request, requiring a finding whether there was an attempt to commit rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100: Dec. Dig. § 59.]
    14. Criminal Law (§ 087) — Trial—Reception of Evidence.
    It was not error to refuse to permit defendant, in a prosecution for rape, to call Ms wife to testify in his behalf, after both sides had rested and the state admitted all that defendant stated that he desired to prove by her.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622, 1625; Dec. Dig. I 087.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    George Boyd was convicted of rape, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Frr other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes”
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

The indictment properly charges rape of a girl under 15 years of age. Her name was Louisa Boyd, and she is the daughter of appellant. The offense is alleged to have been committed on December 24,1912. The jury found him guilty, and assessed his punishement at seven years’ confinement in the penitentiary.

The evidence is amply sufficient to sustain the conviction. The girl testified that the first act was committed about May 27, 1912, and at various times up to and including about January 3, 1913. The prosecuting officer elected, and the court by the charge followed his election, submitting only the offense on December 24, 1912, as the indictment so charged. Appellant himself denied intercourse with his daughter at any time. Under this state of fact this court cannot disturb the verdict.

Appellant’s first bill complains of this portion of a paragraph of the court’s charge: “To constitute the crime of rape, it is necessary that penetration be shown, but, if penetration is shown to have actually taken place as a matter of fact, the degree of penetration is immaterial. ‘Penetration’ as herein used means the penetration of the female organ of the female with the male organ, or penis, of the male.” The preceding part of the paragraph is: “Rape is the carnal knowledge of a female under the age of 15 years other than the wife of the person having such carnal knowledge, with or without her consent, and with or without the use of force, threats, or fraud.” His exception to this is that it was not applicable to the facts, and did not correctly present the law in the case, and was a charge upon the weight of the evidence. This complaint is entirely too general, and points out no specific error. This part of the charge substantially, if, not literally, follows the statute and the many decisions of this court.

The girl was permitted to testify that she was 14 years old. On cross-examination she said she was 14 because her mother had told her so. This was admissible. Its weight was for the jury.

By another bill he complains that the girl was permitted to tell and show that the Bible showed her age, she showing that the old Bible in which her age was first written down was so torn up and part of it lost, and that at her mother’s instance and direction she had written this in another Bible. In approving appellant’s bill to this evidence the court qualified it by stating there is no controversy about her age, and her father, the defendant, testified that she was under 15. Even if there had been any error in permitting her to testify about the Bible and what it contained and how her age came to be written therein, it is all cured or rendered harmless by the fact that the appellant himself swore that she was under 15 years of age.

By another bill appellant complains that the girl was permitted to testify as to various acts of mistreatment by appellant of her and her mother during the time practically from when he first began having sexual intercouse with her up to its conclusion. The court, in allowing the bill, stated: “The evidence complained of does not relate to segregated occurrences, but that it all in some way is connected up with and leads to each of the several acts of sexual intercourse between the defendant and prosecuting witness, and is therefore a part of the res gestae. This evidence was admitted under the rule announced in the Battles Case, 140 S. W. 783.” Appellant accepted this bill as qualified, and is bound thereby. The testimony of this girl makes about 48 typewritten pages. In addition, the appellant himself introduced 31 typewritten pages of her testimony, taken down in an examining trial when appellant was first arrested on this charge. Even if some isolated part of this testimony had not been admissible, the appellant did not object to that specifically, but objects to a whole mass of such matter in one bill. Unquestionably, even to take the bill alone, without any qualification, a part of such testimony was admissible. In such case the bill presents no error. Ortiz v. State, 151 S. W. 1057; Pinkerton v. State, 160 S. W. 92, and authorities cited in both of said cases; 1 Thompson on Trials (2d Ed.) § 696. This bill presents no error.

By another bill, without any statement of the connection in which it was introduced, or without in any other way stating the status of the case on the evidence, appellant objected to this much of said girl’s testimony, viz.: “When I started to cry, and he stopped trying to penetrate me, and he finished between my legs. I picked up my drawers and wiped myself on them and showed them to mamma when she come in.” The court, in approving the bill, does so with this qualification: “The court did not allow any evidence of the conversation between the mother and the daughter on this subject. The drawers were not introduced in evidence. The evidence complained of was a part of the res gestee of that particular act.” This bill presents no error.

Another bill, without any statement as to the status of the case or testimony, or the connection in which used in any way, complains that the girl said she told her mother July 26, 1912. When asked why she did not tell her mother sooner she replied because he (appellant) sáid if she told her and he found it out, he would kill them both, and she thought that if she told her mother, her mother might tell him, and he further told her, even if her mother did not tell him; he would know.it anyhow. Warren v. State, 54 Tex. Cr. R. 444, 114 S. W. 380. This bill presents no error.

The court did not err in permitting the girl to testify that the acts of intercourse with her by her father were without her consent; the court explaining that her testimony was admitted as a part of the res gestee.

By some three bills of exceptions appellant objected to the testimony of the physicians who examined the private parts of the girl and testified to the condition they found it. The bills do not state when this examination occurred. If we could go to the record otherwise it would show that the case was tried in March, 1913. The examination, of course, was made before the trial. The court, in allowing these bills, explained them by stating that the physical examination of the girl showed that the hymen was intact on the day of the examination, and that their evidence was pertinent to the issue of penetration. We think all this testimony, therefore, was admissible. The length of time between the alleged act and the physical examination by the doctors would go to the weight and not the admissibility of the evidence. Smith v. State, 63 Tex. Cr. R. 185, 140 S. W. 1096; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; Pless v. State, 23 Tex. App. 73, 3 S. W. 576.

By another bill it is shown that the girl had testified her mother had gone to Mrs. Spates at the time her father was committing a rape- upon her person on December 24, 1912. The appellant complains that the court permitted Mrs. Spates, a state’s witness, to testify that appellant’s wife had visited her house on said date between 8 and 9 o’clock. The court, in approving the bill, stated that appellant had testified, in substance, that his wife had not left home that morning between 8 and 9 o’clock, so far as he knew, and that the evidence complained of was in rebuttal of his testimony. Under the circumstances this evidence was admissible.

By another bill it is shown that the girl had testified to one act by appellant on her at some date at about 10 o’clock. He complained that the court permitted the witness Elkin, who testified that on that date he killed a hog, and that appellant never got there until between 10 and 11 o’clock, or a quarter after 11 that morning. The court, in qualifying the bill, states that appellant had testified that he left the house with his wife about 9 o’clock that morning to go to this neighbor’s to kill a hog, and could not therefore have been at home to commit the alleged rape on his daughter at the hour stated by her, and he admitted this testimony of Elkin in rebuttal of his testimony. This testimony was correctly admitted.

By another bill appellant merely complains that the court refused to give his special charge No. 4, to which he excepted. There are several charges requested by appellant shown in the record, none of them numbered. Charge No. 4 is not-shown. The bill does not state what it was, or otherwise identify it. In his motion for new trial the only reference to this matter is stated in the sixth ground of the motion to be: “The court erred in refusing to give in his charge to the jury the requested special charge No. 4 by the defendant.” This, of course, is too general to point out any matter for review. However, the court’s charge was full .and complete, and the court should not have given any of his special charges. The same character of bill is made to the refusal of the court to give his special charge No. 5, and the same kind of reference made thereto in his motion for new trial. Neither of these matters present any error.

By another bill appellant complains that the court did not submit to the jury for a finding whether or not he attempted to rape the girl. In qualifying the bill on that subject the judge said he did not agree with appellant’s conclusion as to the delinquency of the court on the point, and says: “The evidence did not justify a charge on an attempt to commit the offense of rape. The act of December 24, 1912, upon which the state relied, for a conviction, showed penetration, and therefore, the offense of rape.” We think the judge is correct.

The only other question necessary to refer to or decide is shown by appellant’s sixteenth bill of exceptions to this effect: That appellant offered to introduce his wife Mary Boyd. The bill says, “to give testimony in his behalf and not against him, and the court would not permit said witness to be put upon the stand,” and that he proposed to ask her, “Did you ever see George Boyd and Louisa Boyd trying to have intercourse together?” And that the witness would have answered, “No,” and that he desired the right to interrogate her generally upon any matters, but the court refused to put her on the stand, to which he objected. The above is the substance in full of his bill. The court qualified it as follows: “Both sides of the case rested before the noon hour of adjournment, and had agreed upon the time to be consumed in argument. When the court convened for the afternoon session, counsel for defendant stated to the court that he desired to call the wife of the defendant, Mary Boyd, as a witness. The court replied that the wife, Mary Boyd, had testified in the habeas corpus proceeding, and that all of her testimony was against the defendant, and that such testimony of the wife was not admissible even though elicited by the defendant, and inquired of counsel for defendant what particular evidence he wanted from the wife. He replied that he wanted to prove by her that she, the wife, did. not see the defendant and Louisa Boyd, the prosecuting witness, trying to have sexual intercourse. The court then called the county attorney over to the bench, and after a conference it was agreed that the jury be told that it. was admitted that the witness Mary Boyd, defendant’s wife, if placed on the stand, would testify that she at no time saw the defendant, George Boyd, and the prosecuting witness, Louisa Boyd, having sexual intercourse, or attempting to have such sexual intercourse, and that such evidence was true, and the jury was so instructed by the court. After this agreement, counsel for defendant manifested some dissatisfaction, and stated that he might want to ask the witness other questions upon any matters, whereupon the court inquired the nature of such other evidence desired, and, counsel refusing to divulge it, the court then refused to let the case be reopened, and directed the argument to proceed. With this explanation, I approve this bill and order it filed as a part of the record in this cause.” This bill was accepted by appellant as thus qualified, and he is bound thereby. As qualified the bill clearly shows no error.

The judgment is affirmed.  