
    ABERNATHY v. STATE.
    (No. 3446.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    1. Rape <§=>43 — Admissibility op Evidence —Birth op Child.
    In a prosecution for rape of a girl under 15, evidence that prosecutrix had given birth to a child is admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. <&wkey;48.]
    2. Witnesses <&wkey;268 — Cross-examination-Repetition op Questions.
    Where prosecutrix had testified to her age, and stated that she had had her monthly sickness since she was 13, it was not error to exclude further cross-examination as to the time it began.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-94S, 959; Dec. Dig. <§=>268.]
    3. Rape <&wkey;40 — Admissibility op Evidence —Other Acts.
    In a prosecution for the rape of a 15 year old girl, evidence of other acts of intercourse between the parties is admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;40.]
    
      Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Henry Abernathy was convicted of rape, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape on his stepdaughter, a girl under 15 years of age.

In the first bill it is stated that the state’s attorney asked the prosecuting witness if she had a child, to which question appellant objected, and the court sustained the objection, when state’s counsel insisted, in the presence of the jury, that he had a right to prove that she had given birth to a child. State’s counsel was correct. This would be conclusive proof that the child had had intercourse with some man, and was admissible. Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477. The court, in approving the bill, states he does not know why he first excluded the testimony, and shows that both sides went thoroughly into the matter; the defendant undertaking to prove that one Kerr was the father of the child.

The second bill shows that the defendant, on cross-examination of the prosecuting witness, asked her, “Had you been having your monthly sickness?” and, upon receiving an affirmative reply, he asked her how many years that had been going on, and she answered, “Ever since I was 13.” Theré was no error in sustaining the objections to the other questions in regard to the time she had been having her monthly sickness, for she had definitely fixed the time by swearing to her age, and that she began to have her monthly sickness when 13 years of age.

Appellant also complains that, as the witness had testified appellant used vaseline when having intercourse, it was error to permit the girl to testify as to the length of time he had been using the vaseline. As we have held, in this character of case, that other acts of intercourse are admissible, the bill presents no error, and the judgment is affirmed. 
      <gn»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     