
    MAGEE v. STATE.
    (No. 3164.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    Rehearing Denied June 26, 1914.)
    1. Witnesses (§ 245) — Examination—Repetition.
    In a prosecution for rape on a girl under 15 years of age, where a witness had testified fully as to his knowledge of the understanding and general repute in the family that prosecu-trix would be 17 her next birthday, a further question to him as to the rumor as to her age was properly excluded as being a repetition.
    [Ed. Noto. — For other cases, see Witnesses, Cent. Dig. §§ 827, 828; Dec. Dig. § 245.]
    2. Witnesses (§ 330) — Cross-Examination —Scope.
    Where a witness testified as to a statement of prosecutrix as to her age tending to show that she was over the age of consent at the time of the alleged rape, and that such statement had been made to him in the summer time, it was proper for the state on cross-examination to show that the witness had been in jail during that summer.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ .1106-1108; .Dec. Dig. § 330.]
    3. Criminal Law (§ 958) — Motion eob New Trial — Affidavit.
    A motion for a new trial on the ground that defendant had learned that he could prove by the father of prosecutrix that she was over the age of consent prior to the alleged offense was properly overruled, where the motion was not sworn to by any person, and there was no attached affidavit that the father would so testify, or any reason why, if he would so testify, an affidavit to that effect was not so attached.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.]
    Appeal from District Court, Montague County; R. H. Buck, Judge.
    Burnam Magee was convicted of rape on a girl under 15 years of age, and fie appeals.
    Affirmed.
    W. S. Jameson, of Montague, for appellant. C. E. Lane, Asst. Atty. Gen., for tfie State.
    
      
      For other oases see same topic and section NUMBER in-Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

■ Appellant was prosecuted and convicted of rape on a girl under 15 years of age, and fiis punisfiment assessed at 5 years’ confinement in tfie state penitentiary.

Tfiere are but two bills of exceptions in tfie record; tfie first complaining that tfie court erred in not permitting counsel to ask tfie witness Jofin Magee wfiat wás tfie understanding, rumor, and general talk in tfie Blackburn family as regards tfie girl’s age. In approving tfie bill the court says that:

“The witness had already testified fully and freely as to his knowledge from the understanding and general repute in the family, and that the girl would be 17 her next birthday, and the court sustained the objection on the ground that it would be but a repetition.”

As thus qualified tfie bill presents no error.

Tfie other bill complains that while cross-examining Elmer Cunningham tfie state was permitted to elicit from tfie witness that fie had been in jail in Oklahoma charged with “bootlegging” — a term sometimes used-for illegally selling intoxicating liquor in prohibition territory. In approving tfie bill tfie court says:

“The witness having testified to a statement of Ethel Austin, as to her age, tending to show that she was over the age of consent at the time of the alleged offense, he stating that the time of said statement was in the summer time, for the purpose of showing that he was and could not have been present at tfie time and place of the alleged conversation with Ethel Austin as to her age, the state was permitted to ask him if he was in jail in Oklahoma serving a sentence for bootlegging during the months of June, July, and August, 1911, the same summer in which he claimed to have heard the statement alleged to have been made by Ethel Austin.”

Under sucfi a state of facts tfie court did not err in admitting tfie testimony.

Tfie only otfier matter presented by tfie record that need be mentioned is an allegation in tfie motion for new trial; it being tfie contention that “tfie defendant has learned that fie can prove by tfie father of the girl that she was 15 years of age on March 3d prior to tfie date of tfie alleged offense. This motion is sworn to by no person. Tfie affidavit of no person is attached to the motion that tfie father of tfie girl would so testify. No reason is given why the affidavit of the-father, if fie would so testify, is not attached, and, tfiere being no affidavit of any person that tfie father would so testify, tfie court did not err in overruling tfie motion on this ground.

Tfie judgment is affirmed.  