
    TARVER v. STATE.
    (No. 11455.)
    Court of Criminal Appeals of Texas.
    Feb. 1, 1928.
    -I. Rape <&wkey;64 — Punishment for assault to rape in excess of minimum of two years’ imprisonment is within jury’s discretion, and appellate court cannot consider contention that1 101 years is excessive.
    Under statute fixing punishment for assault to rape at minimum of 2 years’ imprisonment, but providing no maximum limit, fixing of sentence for period longer than 2 years is within discretion of jury, and complaint that verdict fixing punishment at 101 years’ imprisonment is excessive because time fixed is beyond duration of life of ordinary human being cannot be considered by appellate court.
    2. Criminal law <&wkey;686(l) — Trial court may permit introduction of testimony any time before trial is concluded (Code Cr. Proc. 1925, art. 643).
    The conduct of a trial is largely within discretion of the trial court, and he may permit the introduction of testimony any time before the trial is concluded, under • Code Cr. Proc. 1925, art. 643.
    3. Criminal law >&wkey;©&7(I)— Permitting state to call witness after testimony had closed and charge presented to accused held1 not abuse of discretion (Code Cr. Proc. 1925, art. 643).
    Under Code Or. Proc. 1925, art. 643, action of trial court in permitting state to call a witness who testified to material facts in the case after the testimony had closed and charge of the- court had been prepared and presented to the accused held not abuse of discretion, where there' was no showing that accused was surprised, that he had permitted any of his witnesses to leave, or that he was in any way injured or his rights impaired or affected thereby and after this evidence was admitted court again tendered his charge to defendant’s counsel.
    4. Criminal faw &wkey;>728(5), Ill I (3) — Bill of exceptions to district attorney’s abuse of accused in assault to rape case held not to disclose error, in view of qualification and absent request of instruction.
    In prosecution for assault to rape, bill of exceptions to statement by state’s attorney referring to accused as a beast, brute, and scoundrel held not to disclose error, in absence of request for instruction to jury not to regard such argument; and in view of fact that bill of exceptions was qualified by trial court’s statement that he did not recall any such argument having been made.
    5. Criminal law <&wkey;713 — District attorney’s request that jury give accused 500 years in penitentiary for assauit to rape held not erroneous argument.
    In prosecution for assault to rape, for which statutes fix minimum punishment of 2 years’ imprisonment without fixing any maximum limit, district ' attorney’s statement in argument to jury asking them to give accused a term of 500 years in the penitentiary held not erroneous argument.
    6. Rape <&wkey;>64 — Evidence held to sustain punishment for assault to rape for period which would confine accused in penitentiary for life.
    Evidence, showing outrageous character of offense of assault to rape charged, held to sustain jury’s action in imposing punishment for a term of years which would confine accused in the penitentiary for the rest of his life.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    Zalie Tarver was convicted of assault to rape, and be appeals.
    Affirmed.
    Rosser Thomas, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to rape; punishment, 101 years in the penitentiary.

There are four bills of exception in the record. One complains of the verdict as excessive. The framers of our statutes saw fit to fix the punishment for this offense at confinement in the penitentiary for any term of years not less than two. No maximum limit is stated. The complaint here is that the length of time fixed is beyond duration of the life of an ordinary human being. This would seem in the nature of a complaint at the Legislature for fixing the penalty as same appears in the statute. The complaint is not one of which this court can take serious cognizance. The matter is within the discretion of the jury, and within the language used by the Legislature in writing the law.

It appears from one bill of exceptions that after the testimony had closed and the charge of the court had been prepared and presented to the accused, the court permitted the state to introduce a witness who testified to material facts in the ease. There is no showing that the introduction of this witness was a matter of surprise to the appellant, or that he had permitted any of his witnesses to leave, or that he was in any wise injured or his rights impaired or affected by this action of the court. Authorities are uniform and numerous to the effect that the conduct of the trial is largely within the discretion of the court, and that he may permit the introduction of testimony any time before the trial is concluded. This in fact is in accord with the language of article 643 of our Code of Criminal Procedure 1925. No abuse of the discretion of the court in the matter is shown. The bill shows that after this evidence was admitted, the court below again tendered his charge to appellant’s counsel.

There is a bill of exceptions complaining that the state’s attorney referred to appellant as a beast and as a brute and as a scoundrel. The record contains no request or instruction to the jury not to regard such argument, and the bill is qualified by the trial court in a statement that he does not recall any such argument having been made. No error is shown.

The remaining bill of exceptions complains that the district attorney was permitted in his argument to the jury to ask them to give appellant a term of 500 years in the penitentiary. We know of no authority holding such language erroneous, and in a ease where the law fixes no maximum, we would not be inclined to hold the argument erroneous.

The facts show a case of an exceptionally outrageous character. The young woman who was assaulted by appellant was alone in a room on the fifth floor of a hotel in Hal-las. Appellant was an employee of the hotel. He seems to have had access to keys which would unlock the various doors in the hotel. He appeared in the room of the prose-cutrix attired only in an undergarment, and seems to have made every possible effort to ravish her by force. When the outcry was finally heard and others came to the room it was in the wildest disorder, blood was on the garments of the young woman, who was bruised in numbers of places, her eyes blacked and gouged, and the fact was made manifest that a strong, vigorous young man had attempted, by force, in the heart of a great city, to ravish the woman. No testimony was offered on behalf of the appellant. No claim of mental disorder was interposed. The accused did not take the stand, or attempt to deny or palliate the enormity of his crime: We are unable to say that the jury was not fully justified in giving to the appellant as punishment a term of years which would confine him in the penitentiary for the rest of his life.

No error appearing, the judgment will be affirmed. 
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