
    TEEL v. STATE.
    (No. 9969.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.
    Rehearing Denied May 26, 1926.)
    1. Criminal law <&wkey;l 171 (I) — Statements of dis? triet attorney, in rape prosecution, that jury should consider the child, and that defendant deserved death penalty or 50 years’ imprisonment, held not so inflammatory as to justify reversal, where lowest penalty was assessed.
    Statements of district attorney, in rape prosecution, that'jury should consider the bastard child with no happy Christmas and no daddy to meet at home, and that defendant deserved death penalty or 50 years in penitentiary, prosecutrix having hers already, held not so inflammatory as to justify reversal of conviction, where lowest penalty .was assessed.
    2. Criminal law <&wkey;8l4(3).
    Charge should always be based on evidence in record.
    3. Criminal law <&wkey;8l4(3) — Court properly refused to instruct acquittal of accused in rape prosecution if jury had reasonable doubt whether any other than accused had sexual intercourse with prosecutrix, where there was no evidence to that effect.
    Where there was no evidence that any person other than accused ever had sexual intercourse with prosecutrix and she denied any such relationship with others, held, that court properly refused to instruct acquittal if jury had reasonable doubt whether some other person than defendant had intercourse with her prior to certain date.
    On Motion for Rehearing.
    4. Rape <&wkey;>54(l) — Testimony of 15 year old prosecutrix in rape case held not so incredible as to make conviction unwarranted, notwithstanding lack of corroboration.
    Testimony of 15 year old prosecutrix as to circumstances of alleged rape by her brother-in-law held not so incredible, in absence of corroboration, as. to make conviction unwarranted.
    5.Criminal law t&wkey;l 159(4).
    Uncorroborated testimony of prosecutrix in statutory rape prosecution must be carefully scrutinized, but appellate court is not authorized to arbitrarily reject such testimony.
    Commissioners’ Decision.
    Appeal from District Court, Fisher County; Bruce W. Bryant, Judge.
    Jessie Teel was convicted of rape, and he appeals.
    Affirmed.
    Ponder & Ferrell, of Roby, and B. H. Mc-Crea, of Cisco, for appellant.
    Sam. D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is rape, and the punishment is five years in the penitentiary.

We have carefully considered the evidence in the case and believe that it is sufficient to support the verdict. There are but two bills of exceptions contained in the record. Each of these bills complain at the argument of the district attorney. Bill No. 1 shows that the following argument was used:

“I want you to consider the bastard child he (the defendant) has or is going to bring into the world. Think no happy Christmas to enjoy, no daddy to meet at home.”

By bill No. 2 complaint is made of the following remarks:

“If you give this defendant a death penalty or a term of 50 years in the pen, which he ought to have, Maurine Cotner has hers already.”

We think these statements were not of such an inflammatory character as to justify a reversal of the case. They were matters of inference drawn by the .district attorney from the facts in evidence in the case. They were certainly not of sufficient importance to justify a reversal in view of the fact that the lowest penalty was assessed.

The court correctly refused defendant’s special charge No. 1, by which he sought to have the jury instructed that if they had a reasonable doubt as to whether some other person than the defendant had had carnal knowledge of the prosecutrix prior to the 2d day of May, 1925, to acquit the defendant. A charge should always be based on evidence contained in the recof d, and we have searched this record in vain for any testimony, direct or circumstantial, to the effect that any person other than the defendant had ever had carnal intercourse with the prosecutrix, and if the testimony is to be believed she had never had such intercourse with him except at the time at which he is charged with having raped her. There is no suggestion in this record that the prosecutrix was of unchaste character' prior to the time of the alleged rape, and the court correctly refused to present this theory in his charge.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM. Th’e foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

MORROW, P. J., absent.

On Motion for Rehearing.

MORROW, P. J.

The prosecutrix, Maurine Cotner, testified to the act of intercourse with the appellant. According to her statement, she and the appellant, her brother-in-law, walked home at night from a gathering. The appellant and his wife lived in a box car. The prosecutrix was slightly over 15 years of age. The circumstances implied consent. There was no outcry or disclosure until her pregnancy was discovered, some 5 months after the occurrence. There was corroboration to the point that she and the appellant were out together on the night in question. She was very strenuously cross-examined with reference to her associations with other boys.

In his motion for rehearing, appellant insists that the story of the prosecutrix is so out of harmony with human experience as to ¡be incredible, and that in the absence of corroboration her testimony is not sufficient to support the verdict. We fail to perceive any cogent reason for holding her testimony to the act of intercourse incredible. It is true- that she did not report it and claims to have made some faint resistance. Though the jury believed she made no resistance or objection, she being under the age of consent, corroboration was not essential. See Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S. W. 162, 41 L. R. A. (N. S.) 1144; Newton v. State, 58 Tex. Cr. R. 316, 125 S. W. 90S. The due administra tion of justice- requires careful scrutiny of the testimony of the prosecutrix, but does not authorize its arbitrary rejection by the appellate court. See Gazley v. State, 17 Tex. App. 277; Cook v. State, 88 Tex. Cr. R. 659, 228 S. W. 213, see page 216.

Appellant refers to the case of Adkins v. State (Tex. Cr. App.) 65 S. W. 924; Kee v. State (Tex. Cr. App.) 65 S. W. 517. Tinker’s Case, 95 Tex. Cr. R. 143, 253 S. W. 531, on motion for rehearing, is not analogous; the conviction being reversed upon an error or practice. The announcement made in Gaz-ley’s Case, supra, was reaffirmed and cases cited in support of it; However, Tinker’s Case, supra, is not an authority against the affirmance of the present judgment.

The motion is overruled. 
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