
    WILLIAMSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Jury (§ 131) — Examination Voir Dire— Suspended Sentence.
    Where accused, contrary to the requirements of Acts 33d Leg. e. 7, failed to file his application for a suspended sentence until after trial began, and four jurors had been selected, the court properly sustained the state’s objection to questions propounded by him to the remaining eight jurors on their examination as to ■whether they had any prejudice against the suspended sentence law.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    2. CRIMINAL Law (§ 884) — Submission oe Issues — Suspended Sentence Law.
    Where accused, contrary to the requirements of Acts 33d Leg. c. 7, fails to file his application for a suspended sentence until after trial began, and four jurors had been selected, the court need not submit to the jury the suspended sentence law.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884. 
    
    3. Criminal Law (§ 1090) — Appeal—Presentation por Re,view — Rulings on Evidence.
    Rulings on evidence in a criminal case cannot be reviewed when not presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 884) — Assessment oe Penalty.
    In a criminal case, whether tried before or after the enactment of the indeterminate sentence law of August 18, 1913 (Acts 33d Leg. [1st Called Sess.] c. 5), the court must require the jury to assess the penalty.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884.]
    5. Criminal Law (§ 369') — Evidence—Admissibility — Instructions.
    In a statutory rape case, it was not error to admit evidence of other acts of intercourse by defendant with prosecutrix where the instructions limited the jury to the consideration of one specific .act on a certain date.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Criminal Law (§ 1090) — Appeal—Presentation eor Review — Reeusal oe Instructions.
    The refusal of a requested instruction relative to the argument of the prosecuting attorney could not be considered on appeal when not raised and preserved by a bill of exceptions.
    [Ed. Note. — For 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; Wi L. Crawford, Jr., Judge.
    J. P. Williamson was convicted of rape, and appeals.
    Affirmed.
    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 & R,ep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at 25 years in the penitentiary.

It would serve no useful purpose in this, or any other, case to recite the evidence. It was amply sufficient to sustain the verdict; although appellant himself testified, positively denying any act of intercourse with the girl. This was all for the jury and the lower court, and we cannot disturb the verdict.

It is shown that, after the trial began, and four jurors had been accepted, being passed upon separately under a special ve-nire, appellant then for the first timé filed his plea seeking to have his sentence suspended, if convicted, and the punishment assessed at less than 5 years. Thereupon, as each of the other eight jurors were examined on their voir dire, he sought to ask them whether or not they had any prejudice against the suspended sentence law. This was objected to by the state, because he had not filed his application for a suspended sentence until after the trial began, and four jurors had been selected. The court sustained the state’s objection, and would not permit him to ask the remaining eight jurors such questions. In this there was no error. The statute itself (Acts of 1913, p. 8) expressly requires that such plea shall be filed before the trial begins, and the uniform construction thereof by this court is in accordance with the statute. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846. See, also, Monroe v. State, 157 S. W. 155; Baker v. State, 158 S. W. 998.

Neither should the court, under the circumstances, have submitted the suspended sentence law to the jury, because no plea was filed in time.

There are in the motion for new trial several complaints to the introduction and exclusion of testimony; but there is no bill raising either of these questions. They are not, therefore, presented in such a way that this court can review them. However, even if there had been bills, the complaints show no error.

At the time of this trial there was no valid indeterminate sentence law in effect in this state. The act of April 3, 1913, p. 262, has been declared void by this court. Ex parte Marshall, 161 S. W. 112. The act of August 18, 1913, p. 4, did not go into effect until three days after this case was tried. Even if this latter act had been in effect, the court had, to submit to the jury, and have them assess the punishment. So that the court’s charge requiring the jury to assess the penalty was correct.

The court did not err in admitting other acts of intercourse by appellant with the said girl, nor in refusing to charge the jury that they could not consider such evidence. After the evidence was in, the court expressly limited the jury to the consideration of only one specific act on a certain date, and limit-' ed the jury in the charge to a conviction for the offense on that date, and that act only. The court’s action was clearly correct. Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783.

There appears in the record a refused special charge asked hy appellant as to some argument of the county attorney. This question is not raised by bill of exception, which is the only way that such question can be raised and preserved. A special charge only does not raise it. Besides, no complaint is made on that score in the motion for rew trial.

The record shows no error, and the judgment is affirmed.  