
    GRIMES v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Witnesses (§ 379) — Conteadiction—Im-peachment — Inconsistent Statements.
    Where, in a prosecution for assault on defendant’s stepdaughter with intent to rape, his wife testified that she was not informed of the assault by prosecutrix on the day of its alleged occurrence, and that at no time that evening did prosecutrix seek her, nor did she ask prosecutrix if defendant had ruined her, and on cross-examination denied that on the Sunday following she'had told S. that prosecutrix came to her on the night of the alleged assault and told her of it, the court properly permitted S. to testify that prosecutrix's mother had so stated to her; the court having charged that the jury could not consider such evidence against accused, but only to aid them in passing on the credibility of the mother.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    2. Criminal Law (§ 730) — Trial—Prosecuting Attorney — Misconduct.
    In a prosecution for alleged assault on defendant’s stepdaughter, with intent to rape, the mother having testified for accused that her other daughters had left home and were cold and indifferent to her, it was not prejudicial misconduct for the prosecuting attorney to ask her the reason why they had left home, creating an inference that accused had assaulted them also, where the court promptly sustained an objection to the question, did not permit the witness to answer, and instructed the prosecuting attorney not to ask the question again.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    3. Indictment and Information (§ 189)— Conviction of Offense Charged — Election — Evidence.
    Where the state elected to prosecute accused for assault to rape, he was not entitled to a peremptory instruction because the testimony of prosecutrix showed rape instead of assault to rape.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 582-595; Dec. Dig. § 189.]
    4. Criminal Law (§ 814) — Trial—Request to Charge — Applicability to Evidence.
    Where, in a prosecution for assault on defendant’s stepdaughter, the evidence showed that if accused assaulted her at all it was with intent to rape, a request to charge that, if accused penetrated the rectum of prosecutrix, the jury should acquit, was properly refused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Criminal Law (§ 1090) — Misconduct of Attorney — Bill of Exceptions.
    Misconduct of the county attorney, in that he used certain language in regard to which charges were requested and refused, cannot be reviewed, where there is no bill of exceptions verifying the fact that the county attorney used the language objected to.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    George Grimes was convicted of assault, and he appeals.
    Affirmed.
    Pierson, House & Pierson and Albert Walker, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is the second appeal in this case; the opinion on the former appeal being reported in 141 S. W. 261. Therefore we do not deem it necessary to detail the facts again. On this trial appellant was again convicted of assault with intent to rape his stepdaughter, and he again appeals-the case to this court.

To make our ruling on the first bill of exceptions plain it is necessary to state a portion of the testimony of appellant’s wife; appellant having offered her as a witness. On direct examination at the instance of appellant, Mrs. George Grimes testified: “The defendant, George Grimes, did not any time during that evening after I got back from Grand Prairie make any attack of any sort or kind on Bessie Smith; he did not lay his hands on her. I did not at any time after I returned, or before I went away, hear her holler or scream. The defendant did not at any time on that evening after I had gotten back from Grand Prairie send me out behind the barn, or tell me to go out there and stay until he called for me. At no time that evening did Bessie come out and find me 'behind the barn and I ash her if George had ruined her.” She, having thus testified at the instance of appellant, she would be subject to impeachment on these matters the same as any other witness, and on cross-examination she was asked if the Sunday following the alleged assault, on the way to Grand Prairie, she did not tell Mrs. Ollie Smith that Bessie had come out to her behind the bam and told her that appellant had tried to ruin her. She denied making this statement to Mrs. Ollie Smith, and, as it was about a matter she had testified to on her direct examination, there was no error in the court permitting Mrs. Ollie Smith to testify that Mrs. Grimes did tell her that the prose-cutrix, Bessie, had come out to her behind the barn immediately after the assault, and told her that appellant had tried to ruin her. The court in his charge instructed the jury they could not consider this as any evidence against the defendant, but could only consider it for the purpose of aiding the jurors in passing on the credibility of the witness Mrs. Grimes, if considered at all.

On the other appeal of this ease we held as inadmissible that appellant had assaulted his other stepdaughters, and for this-reason they had left him. It is shown by a bill that, when Bessie Smith was being interrogated, she was asked why her sisters-left home. The court promptly sustained objection to this question. In the light of the ruling on the former appeal in this case,, this was an improper question. It is also shown that the prosecuting officer asked some other witnesses questions calculated to elicit the same information, objection to which-was sustained by the court. In approving the bill the court states: “This bill of exception No. 3 in this cause is approved with this explanation: It will be noticed that when Bessie Smith and her sister Lettie-Smith were on the stand, and the question, was asked why they were not living at home, the court promptly and immediately sustained an objection to the county attorney ashing the question. The objection to the question propounded to Mrs. George Grimes, wife of the defendant, was just as promptly sustained. As soon as it was asked, Mr. Walker said, ‘We object.’ And then it was that the court told the county attorney not to ask the question, and instructed him when the defendant’s attorney ended his exception, ‘You are instructed not to ask the question again.’ The question to Mrs. Grimes came up under the following circumstances, as the record will show: Mrs. Grimes had stated in her testimony that none of her children lived with her; that she didn’t know whether they were dead or alive, and had stated that her daughters were cold and indifferent toward her; and that one of them just simply gave her a- finger in a limp way. Mr. McCutch-eon, the county attorney, prior to the question objected to by the defendant, asked her if she had made these statements before the jury, and she said that she had; whereupon he asked her: ‘Don’t you know the reason for that? Don’t you know that George Grimes tried to do the same thing to all of them that he did to this girl?’ It was under these circumstances that this question was asked, and the objection immediately sustained, and the county attorney instructed not to ask the question again.” The question to Mrs. George Grimes, considering her testimony about the conduct of her children, in a measure excuses the county attorney’s asking her the question he did. As no witness was permitted to state to the jury that appellant had ever been guilty of any improper conduct towards the other girls, while the questions were highly improper, as the court in the presence of the jury reprimanded the county attorney, it is not such a matter as will necessitate a reversal of the case. In none of the cases cited by appellant did the court in the presence of the jury reprimand the attorney and promptly sustain the objection as the court did in this case.

The peremptory instruction requested by appellant should not have been given. If the testimony of Bessie Smith should be held to show rape, instead of assault to rape, which is exceedingly doubtful, yet, as the state elected to prosecute him for assault to rape, appellant would not be heard to complain.

As to the special charge requesting the court to charge the jury that if appellant penetrated the rectum of Bessie Smith to acquit, the court did not err in refusing same. The evidence and all the evidence, if it shows any offense, shows an assault with the intent to have carnal intercourse with the girl.

There is no bill of exception verifying the fact that the county attorney used the language in regard to which special charges Nos. 4 and 5 were requested. The court refused the charges, and, in the absence of any showing that the language was used, We must presume the court ruled correctly.

The judgment is affirmed.  