
    (86 Tex. Cr. R. 520)
    SHAW v. STATE.
    (No. 5646.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1920.)
    1. Criminal law <@=>725 — Argument that DEFENDANT SHOULD NOT BE GIVEN SUSPENDED SENTENCE NOT GROUND FOR REVERSAL.
    The argument of the county attorney that defendant, charged with assault to rape, should not be given a suspended sentence because he was guilty beyond question, was a man of mature age, and, if given a suspended sentence, might assault some other woman wasi not ground for reversal, where the evidence showed an assault with considerable violence and the exhibition of a pistol, and that he had been arrested for assault on another woman and accused of assaulting a third.
    2. Criminal law <&wkey;938(l) — New trial not GRANTED TO ENABLE DEFENDANT TO SHOW WHAT TIME MOON SET, BY LIGHT OF WHICH PLAINTIFF CLAIMED TO HAVE IDENTIFIED HIM.
    A new trial will not be granted to enable defendant to show by an almanac the time the moon set on the night of the alleged crime, though the prosecuting witness claimed to have recognized him by the light of the moon, where the question of recognition and identity was an issue on the trial, and there is nothing to show that he did not know, or could not have discovered and brought out on the trial, the time that the moon set.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Andrew Shaw was convicted of assault to rape, and he appeals.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to rape, his punishment being assessed at three years in the penitentiary.

A bill of exceptions recites that the county attorney in his opening argument said, in substance, replying to the application of the defendant for a suspended sentence:

“Gentlemen of the jury, the defendant applies to you for a suspended sentence. The evidence in this case shows beyond question that the defendant is guilty of an aggravated assault with, intent to rape. He is 'a man of middle age, and thoroughly mature, and, if you should find, him guilty and suspend his sentence, what assurance have you that he would not attempt to-rape some other woman? There is not a fact in this case that should appeal to you for a suspended sentence.”

Exception was reserved because this argument was calculated to arouse the passions of the jury and create a prejudice in the minds of the jury against the defendant. The court overruled the exception, and the bill presented by appellant was refused, and this bill filed in its place by order of the court, on the ground, as the court states, defendant’s bill did not fairly present the facts constituting the exceptions, and the court certifies the above as a correct statement of the facts as they occurred, and states no special charge was asked by the defendant, instructing the jury not to consider the argument. This argument was not of such a nature as requires a reversal of the case. The facts show that appellant did commit the assault; that he entered the home of prosecuting witness, where she and her husband were, and exhibited a large pistol, S.nd-undertook to have intercourse with her, using considerable violence towards her person; that he was a fully grown and mature man, as shown by the testimony, and also that he had been previously arrested for assault to rape on a woman named Effie Threadgill. Appellant testified:

“I also know a negro woman they call ‘Big Mouth Molly,’ and was accused of making an assault on her.”

In view of this record we are of opinion there is not such error in the argument of the county attorney that requires a reversal.

In one of the grounds of the motion 'for new trial it is stated that the moon on the night of the alleged rape, as shown by an almanac, “set” at 1:52 in the morning, and appellant says this was important by reason of the fact that the state’s witness Jessie Jones, the prosecutrix, said that she recognized appellant partly by the light made by the moon shining through her window. The-testimony is to the effect that the entrance-by appellant into the house of prosecuting witness and his attack upon her occurred between midnight and day. This is not alleged as newly discovered testimony, nor is-it sworn to by defendant, nor is there any-, thing to show but that he knew this fact, or could have discovered and brought it out upon the trial of the case. If the moon had. in fact set at the, time of the alleged assault, he knew it, or could have easily ascertained it. The whole matter, his recognition and identity, was an issue in the case. There was an attack made on the testimony to the effect that the moon was in such position with- the room prosecutrix occupied that it would not shine in the room. In the manner in which this matter is presented it does not require consideration.

The judgment will be affirmed. 
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