
    WHITEHEAD v. STATE.
    (Court of Criminal Appeals of Texas.
    March 15, 1911.
    Rehearing Denied April 19, 1911.)
    1. Rafe (§ 52)— .Prosecution — Evidence— Sufficiency.
    In a prosecution for rape upon a girl of less than 14 years of age, evidence held to support a verdict of guilty.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 52.]
    2. Criminal Law (§ 1159) — Appeals—'Verdicts — Evidence.
    In passing on the evidence sustaining a conviction, the appellate court merely determines whether there was sufficient evidence if believed by the jury to sustain the conviction, and does not decide upon the credibility of witnesses or the weight of testimony.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 3074-3083; 1159.] see Criminal Dec. Dig. §
    3. Criminal Law (§§ 763, 764) — Instructions — Weight ' of Evidence.
    Where the defense to impeach the prose-cutrix had offered evidence as to contradictory statements made by her as to the number of times the defendant had intercourse with her, and for the purpose of corroborating the state was allowed to prove by the prosecutrix statements she -had made to the county attorney on that subject, a charge reciting those facts and charging the jury that this evidence should not be considered unless believed to corroborate her other testimony, and only for purposes of corroboration, was not erroneous as upon the weight of the' evidence or misleading to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    4. Criminal Law (§ 822) — Trial—Instructions.
    Isolated paragraphs of a charge cannot be considered separately from the whole on that subject in order to lay the foundation of an assignment of error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990-1995; Dec. Dig. § 822.]
    
      5. Criminal Law (§ 829) — Trial—Instructions.
    Requested charges may be refused, where proper charges have already been given, on the same subject.
    [Ed. Note. — For other cases, see Criminal Law, Gent. Dig. § 2011; Dee. Dig. § 829.]
    6. Criminal Law (§ 673) — Instructions— Evidence.
    After the defendant had introduced his evidence and testified himself, witnesses in rebuttal testified to independent facts tending to show that- the defendant was guilty as well as to facts corroborating the prosecutrix. Held, that the court properly refused to charge so as to limit this testimony to impeaching the testimony of the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    7. Criminal Law (§ 1035) — Appeau—Pres-entation of Grounds of Review in Court Below.
    Where the defense while cross-examining the prosecutrix, and trying to show that her baby did not resemble the defendant, did not object to having the baby brought in before the jury, the defense cannot claim it as error on appeal, where the court offered to have the baby removed if the defense requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2633-2644; Dec. Dig. § 1035.]
    8. Rape (§ 43) — Evidence—Admissibility.
    The prosecutrix may testify that the defendant is the father of the baby which she claims is the fruit of the transaction.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dee. Dig. § 43.]
    9. Criminal Law (§ 1091) — Appeal—Bill of Exception. '
    A bill of exceptions complaining that the trial court refused to allow the defense to ask the prosecutrix a certain question cannot be considered where it did not state what her answer would have been.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2935; Dec. Dig. § 1091.]
    10. Criminal Law (§ 1091) — Appeal—Bill of Exception.
    A bill of exception complaining that the trial court refused to allow the defense to contradict the testimony of the prosecutrix that the defendant was the only person who ever had intercourse with her by proving that she had said that another had had intercourse with her cannot be considered, where it failed to show that she had testified that the defendant was the only person with whom she had ever had intercourse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2935; Dec. Dig. § 1091.]
    11. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Sufficiency.
    A bill of exceptions stating the matters sought to be reviewed as objections and not as facts is insufficient.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2931-2935; Dec. Dig. § 1091.]
    12. Rape (§ 13) — Statutory Rape — Consent.
    In a prosecution for rape upon a female under the age of consent, her consent is immaterial.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 12; Dec. Dig. § 13.]
    13. Criminal Law (§ 369) — Evidence—Other Acts of Intercourse.
    In a prosecution for rape, evidence of other acts of intercourse'on the part of the prose-cutrix is admissible only when they are with the defendant, and for the purpose of showing consent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    14. Criminal Law (§ 369) — Evidence—Other Acts of Intercourse.
    In a prosecution for rape upon a female under the age of consent, other acts of intercourse of the prosecutrix are not admissible in evidence unless the fact of intercourse at all be questioned, or the evidence snows that another may be the father of the child, and hence, in a prosecution for rape, where the act of intercourse is proven by the birth of a child, evidence of acts recurring more than two years before the birth of the child is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    15. Criminal Law (§ 369) — Evidence—Other Offenses — Admissibility.
    In a prosecution for statutory rape, where the defense claimed the father of the prosecu-trix was the guilty party, evidence that four years before he raped another daughter is not admissible to show the. father guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    16. Witnesses (§ 287) — Examination — Explaining Cross-Examination — Evidence —Admissibility.
    In a prosecution for statutory rape, where a sister of the prosecutrix testified on direct examination that she saw the prosecutrix go out at night and meet a man, and on cross-examination testified that she did not tell her father because he did not mind such things, and would have been mad at her, on redirect examination it was proper wto exclude a further explanation of why she did not tell her father by testimony as to other sisters who had gone astray, and that he did not object to other misconduct on the part of the prosecutrix, and had mistreated the witness by compelling her to have intercourse with him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1000-1002; Dec. Dig. § 287.]
    17. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Sufficiency.
    A bill of exception complaining of the exclusion of evidence that several persons who signed accused’s bail bond were jurors in a former trial of the same case, which was offered as corroborative evidence of the accused’s good reputation, is insufficient when it does not show that the persons signing were jurors, or that accused’s reputation had been attacked.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1091.]
    18. Criminal Law (§ 380) — Evidence — Character of Accused — Admissibility.
    Evidence that jurors who sat in a former trial of the same case had signed the defendant’s bail bond is inadmissible to show good character and reputation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 843, 845; Dee. Dig. § 380.]
    19. Criminal Law (§ 1091) — Appeai>-Bill of Exceptions.
    A bill of exceptions, complaining that the argument of the county attorney on the defendant’s contention that there was a conspiracy against him,- was improper, but failing to show within itself the facts of the case and the testimony of the witnesses, or that the defendant had requested in writing that the court charge the jury to disregard these statements, is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1091.]
    20. Cbiminal Law (§ 1091) — Appeal—Bill op Exceptions.
    A bill of exceptions complaining of improper argument as not being within the record is insufficient, where it fails to show the testimony introduced at trial, even though reference be made to the statement of facts without showing what the statement shows on the subject.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1091.]
    Appeal from District Court, Parker County ; J. W. Patterson, Judge.
    Hugh Whitehead was convicted of rape on a girl less than 14 years of age, and appeals.
    Affirmed.
    The evidence of the prosecutrix and defendant was as follows:
    Testimony of the Prosecutrix.
    Lottie Whitehead, a witness called on behalf of the state, being duly sworn, examined in chief by Mr. Wilson, testified as follows :
    “I was born in Hill county, Tex.; have lived in Johnson county, Tex., nine or ten years. We live five miles from Godley, Tex., out on a farm. We moved to the farm some time in December, last year. In May, 1907, I lived in Godley. I know Hugh Whitehead; have known him six or seven years. I don’t know whether I am kin to him or not. When he and my sister first married, they lived on our place and rented from my father. 1-Ie lived there a year I think, and from there moved to Lum Glen’s place, about two miles from that place, in Johnson county. I think he stayed there about a year, and from there he moved to Godley, and lived there some time. I don’t know how long, and from there moved to Weatherford. I remember visiting him in Weatherford. I don’t remember how long that was after he came. I was then 13 years old; would have been 14 on the 9th of June, 1907. I was never married to the defendant Hugh Whitehead. I came to Weatherford the latter part of May, on Friday or Saturday. I remember that because school was out. Our school closed in May.I don’t know about what time. It was closed about a week when I came here. The school exercises had continued, and they were going on when I came here. My father and Mr. Harris came here with me. Mr. Harris lives at Godley, and keeps store there. We all 'bought tickets to come up here. I was there when they bought the tickets. It was late when we got here. We came on the Santa Fé train. It was about 1 o’clock when we came to Godley. No one met us at the train here at Weatherford. I had never been on a visit to Hugh here before that. ■ My father and I walked out to where Hugh Whitehead lived, on the Rushing place. I don’t know where the Texas Female Seminary is. Hugh and his people lived right smart piece from town, about two or three miles. We walked way out there. It was late in the evening when we got to my sister’s. My sister and the baby were then at home and Hugh was in the field. My father stayed with me there that night. He stayed one day and went back the next day. I think there were three rooms in the house Hugh lived in — two bedrooms, and the kitchen and dining room were together. When my father and I were there, Hugh’s wife and Hugh slept in the other room 'both nights. My father was there two nights. I slept in the same room with my father. I slept on a cot and my father slept on a bed on the floor; and we slept the same on the second night. They had one bed in the house, and Hugh and Ella, his wife, slept in the bed. The nearest neighbor at that time was Mrs. Beck, who lived about 100 yards away, across a public road, and down in a hollow. The defendant, Hugh Whitehead, came to the bed where I was on the day after my father left there. Defendant had one child at that time, which was then over a year old, and that child was in that room in a cot. It was along about sundown when the defendant came to me. His wife was then at Beck’s. I don’t know what she had gone there for. She went over to get something, I don’t remember what. I was feeling badly on that day, had a headache, and one thing another, and lay down to rest. It was about dark; along about sundown. There was no light burning in the room where I was. I don’t remember whether the defendant had been at work or around home that day. My monthly sickness first appeared when I was about 12 years old. They stopped when I had measles, stopped a day or two, and'my father had to get some medicine. After that I had my sickness on up to the time I came up here. My sickness was just going off when I came up on this visit to Hugh and his wife. I remember that 'because I pulled off the cloth before I left home. I never had my sickness any more until my baby was about nine months old. My baby was -born 28th of February, 1908. When defendant came to my cot, he just told me to keep my mouth shut, and he put his hands under my clothes and got up on top of me, and had intercourse with me. I know what is meant by a man’s private parts and a woman’s private parts. His private parts penetrated mine. When he got off me, he told me to keep my mouth shut; if I ever told anybody, he would kill me and my father. At that time I had on a dark skirt and a white one, and this intercourse stained the white one through the dark one. I never noticed the dark skirt to see if it was stained. I stayed at the defendant’s eight or nine days after that. I did not tell my sister abont this; nor my father or mother when I got home. I did not tell my sister because it scared me when defendant told me he would kill me and my father. When I was at my sister’s, I was afraid he would kill me if I told her. My sister went back with me to Godley on a Monday. I stayed here during all that week that I came and over until the following Monday. I don’t remember how long my sister stayed at Godley. She came back here with my sister Annie, who is also called Mary. The defendant, Hugh Whitehead, is a man, and I am a female. I was in Parker county, Tex., when the defendant came to my cot.”
    Cross-examination by Mr. Martin: “I was 16 years old the 9th of last June. My father’s name is R. N. Whitehead. I have a brother named Will Whitehead, and one named Jim Whitehead. Jim’s wife’s name is Ida. She is here. Jim is not here. He is at home in Johnson county. He is man grown. I have three brothers-in-law. One is named William Ponds, who is not here. I have not seen him in abont six years. His wife has been living with us all the time he has been gone. He was in Oklahoma when I last heard from him. Hugh Whitehead is my brother-in-law¡ and so is Brace Upchurch, who lives in Hill county now. He has not been living with us the past year. My father is here as a witness. My father and I came here to visit Hugh and Ella the last of May, 1907, after school had been out a day or two. There were some entertainments after that, which I did not stay for. When I got back from that visit, the entertainments were over. My father and I came up here on Friday or Saturday. I did not swear before it was Friday, but I swore before it was Friday or Saturday. That was the only visit I ever made to Hugh while he lived here at Weatherford. I did not testify before that my father and I came up here and visited Hugh the first time at Smith’s and stayed a day or two. I did not visit Hugh at I. E. Smith’s place west of town about a mile; did not visit him there with my father. I don’t know when they moved to Florence Patrick’s place. I did not visit them and stay a few days until they moved to Florence Patrick’s place in town. I don’t recollect anything about it. If I visited them any more than I have stated, I don’t remember about it. We came up here in 1907 but once. I visited Weatherford just once-before I came here to court, and that time my father and Mr. Harris came with me. Harris is here as a witness. I am well acquainted with him. He came out and took dinner with Hugh while I was there, and my father went home that evening with Mr. Harris. Hugh at that time was working on a little farm near where he was living. I cannot state about what time my father and Harris left to go home that evening. It was Monday or Tuesday. It was Monday. He stayed two nights I am certain. I did not swear on the other trial that it was Sunday about sundown that defendant had intercourse with me, or between sundown and dark. I never swore it was Sunday, because father stayed here two nights. My father never told me he went home Saturday. I never swore Hugh had intercourse with me on Sunday. He did have intercourse with me along about sundown while his wife was at Beck’s, down across the road in the hollow about 100 yards from their home. We could not talk between there and Beck’s without hollering. I never talked with Mrs*. Beck across there, and I don’t remember hearing my sister do so. She has hollered over there a time or two. She would be on her gallery talking to Mrs. Beck on her gallery. I did not swear on the other trial that Ella went to Mrs. Beck’s to get some coffee that evening that Hugh had intercourse with me. I never said she went over there to get coffee. I don’t know what she went for. She was gone 15 or 20 minutes. I couldn’t tell how long she had been gone when Hugh came to me. I never knew Hugh was there when she left. When I first discovered him, he came in the door. I had my day clothes on; had not undressed. I had a white dress on. The baby was on the bed asleep in the other room. I knew that because Ella told me to notice it when she left. I was lying down when she left. I got up and went in the room, and saw it lying on the ¡bed. After I lay down on the bed, I never got up before Hugh came. When they was in the kitchen, I went in there, my head hurting me, and went in the room and looked on the bed, and seen it was all right, and lay down on the cot. The kitchen was towards the right from the room I slept in, and the big room was towards the left. My room was right off the side of it. The kitchen was further back. I never got up and went in the kitchen. I was sitting in the kitchen and came out and looked on the bed, and seen the baby was all right, and went in and lay down on the cot. I don’t remember whether I was laying down or not before my sister left, nor where I was when she told me to watch the baby. I never lay down but once. I went from the kitchen in the big room and from there went and lay down. Defendant, the first thing he said to me, told me to keep my mouth shut. I did not scream nor cry. I never said a word, for he scared me. Something he never said in his life to me before. He didn’t say what he wanted. I don’t remember whether he was standing up when he said that. He was not lying down by the side of me. He was in the same room I was in, talking to me. I had not spoken when he told me to keep my mouth shut. I didn’t ask him what he meant 'by it, because when he told me that it scared me, and then he had intercourse with me. He put his hand under my clothes. Then he got up over me. I wasn’t saying nothing all this time; just kept still. He didn’t ask where his wife was. Pie pulled up my clothes, and had intercourse with me. He put both his legs in between mine. I don’t remember whether he pulled my legs apart with his hand. I did not voluntarily open them while he got. on top of me I was trying to hold my clothes down while he was doing that. I had hold of my clothes, trying to push them down. 1-Ie just got on me and pushed them back, and had intercourse with me. I never said a word. Pie stayed on top of me about five minutes I reckon. I was scared all that time. When he got up, he told me if I ever told anybody he would kill me and my father. I was still scared. I could not tell how long he stayed in the room. Before he left, I went out in the hall and waited until my sister came back. I was still scared. I mean I went out on the gallery, and she came back. 1 didn’t run down where she was 'because I was afraid if I would start off down there he would think I was going to tell her and would kill me. He had. never threatened to do any violence to me before that; had always been kind to me and treated me nice. I had visited them when they lived in Johnson county. After I went out on the gallery, it was quite a little bit until my sister came. She went in the kitchen and lit the lamp. I don’t know what she had in her hand. She had something she had borrowed. I did not swear before that she went over there to borrow coffee and came back with coffee, and went in to the fire and made some coffee Sunday evening. I don’t know where Hugh was when my sister stepped on the gallery. I didn’t watch where he went. I saw him again when he came, home to supper. I don’t know what she cooked. She had coffee, for I drank a cup of it. I don’t remember whether or not she cooked it after she came back. There was fire in the stove before she went over there. She had made it. After she came in, I did not say a word to her about what Plugh had done. It was dark then. I did not tell her because I was afraid Hugh would kill me; that is the only reason. I ate supper. Plugh came in and ate supper. I d.id not cry any, was not crying when my sister came home. I was still scared. I did not eat the regular meal. I just drank a cup of coffee. I don’t remember whether I then went straight to bed, but I think I stayed there until she got the dishes cleaned up. I did not help her clean up the dishes. As well as I remember, I stayed in the room until she cleaned them up. She did not then go and make up the bed for me. I slept on the cot. My father was not there that night. I slept on the same cot I had been sleeping on. I-Iugh did not come and sleep with me after he ate supper. He never spoke to me after that about what he had done, nor I to him. Hugh came down in Johnson county and visited us at our home, with his wife, and I never cheeped it to him nor anybody else. I was not still scared. I knew he couldn’t do nothing down there. I did not tell my father What he had done because I was afraid he would kill him there. My father is a good deal .larger man than Plugh, but I was afraid he would kill my papa if I told. I-Iugh and Ella seemed to be happy and getting along well; always kind to me, when I was around them. Ella and I went down to my home on the Santa ES. I put a letter in the mail box for Ella up here, right over opposite the house, on the public road. I never noticed the mail carrier., I had seen a man, and Ella said it was him. It is not a fact that I went over there and mailed a letter, and that Ella asked me who I was mailing that letter to, and that I told her it was none of her business. I did not write a letter to a boy in Godley and tell him I was coming home next day, and mail that letter, and did not tell Ella the letter was to a boy, and that I wouldn’t tell who it was. I don’t remember whether I-Iugh, working on the farm, was away half an hour to an hour after dark before he came to supper during that week. I don’t remember that he told me that he had to attend to Judge Rushing’s stock, and that he had a good many stock. I don’t remember whether or not he was up around Judge Rushing’s, doing chores, milking, feeding hogs, etc. I don’t know what he was doing or who was working with him. I don’t remember meeting a man named Walter Shropshire while I was there. I don’t know a young man named Alec Hamilton, who used to live in Johnson county. X know Charley Campbell. I stayed two Sundays at Hugh’s. My father stayed there one Sunday. I never done anything on the first Sunday; never went anywhere. My father was there all day Sunday. 1-Ie didn’t tell me he was going to see that new addition, Mineral Heights. If he was gone several hours that evening, I don’t know nothing about it. That first Sunday we were just sitting on the gallery, me and Ella; didn’t stay there all day. We got dinner, and Hugh and father were there for dinner,' and Ella and I. We were the only ones there at dinner that Sunday. The next Sunday just me and Ella and Hugh were there. I-Iugh Whitehead has had intercourse with me three or four times. I don’t remember just how many times. I never counted them, but it was three or four times. The first, second, and third times -were at his house. As to the fourth, I don’t remember just how many times he had intercourse with me. I never said on the other trial the defendant just had intercourse with me one time. The first time was the time I have testified about. The second time I cannot state where his wife was. She was out' of the house. I couldn’t tell how long I-Iugh was in there. He didn’t say he was going to kill me that time if I said anything. I don’t remember what he said, nor what time of day it was. It was along in the night. I was on the cot. I don’t remember whether I had been asleep, nor where his wife was. She was in the bed right there. I don’t know where the baby was. It was not in the room. They were tolerably large rooms. My bed didn’t come out half way where the door is. I couldn’t tell when he came in the room. I don’t remember the first thing he said to me that time. He had intercourse with me. He got in bed with me to have intercourse with me; couldn’t tell how long he stayed. I tried to hold my clothes down. I don’t remember whether I had on my day clothes or nightclothes, or what I was doing at the time he came, or how long it took him that second time. He left m-y clothes up when he got off. I don’t remember whether they were stained the second time, or whether I looked to see. It hurt me the second time. I didn’t cry out. I can’t tell when the third time was. It was in the night I think, but I don’t know. I don’t remember how long it was after the second time. 1-Ie hurt me. I was laying down on the cot. It was in the night, as near as I can remember. I don’t know where my sister was then, nor whether I had been asleep or not, nor how long I had been lying there before he came in and raped me, nor whether or not I went to sleep after he went away, nor how long he lay on me. I never told his wife about a single one of these times. This is not a made up case dictated to me by my father; I have never talked to him about how many times Hugh had intercourse with me. I never went before the grand jury in this county. I was before the grand jury in Johnson county. I don’t remember whether I told them it was Hugh on that occasion or not. I told Mr. Long at our house after the grand jury had adjourned. I don’t remember whether they called Hugh’s name when I was before the grand jury’ or not. They called my father’s name. They were not trying to get a case of incest against my father. The only grand jury I was before was in Johnson county. Mr. Long examined me for them; asked me questions. I had not then given birth to a child. I don’t remember what month I was before the grand jury in Johnson county, nor how long it was before my baby was born. On that occasion my father carried me to Cleburne: I don’t know whether he went before the grand jury in Johnson county or not. I know he was not in the room when I -was before the grand jury. I was sworn before them, and questions were asked me. I don’t remember how long I stayed before them. After we all got through, we came straight home. My father’s home was somewhere about 15 miles from Cleburne. I don’t know whether or not I stated before the grand jury who was the cause of my condition. It was not either my father nor one of my brothers, and I did not tell the grand jury it was. They didn’t ask me. Before my baby was born and before I was before the grand jury, Dr. Davis examined me. 1-Ie was our family physician. The examination was in the night; can’t remember what night in the week, nor what month. I had stopped school before I went before the grand jury. I went to school until awhile before the doctor examined me. I don’t remember when the school started that fall. I stopped school because 1 began to show I was pregnant. My father told me to stop school before the doctor examined me. When my father told me to stop school, he did not ask me the cause of my condition, nor who I had been having intercourse with. I don’t remember whether my mother asked me who was the cause of my condition. I didn’t tell her. I never told any of them about it. I know she tried to get me to tell awhile afterwards. After I came from the jury, I first told my father and mother that Hugh Whitehead was the one that got me that way. After I came back from the Johnson county grand jury, I told Mr. Long about it. He is here as a witness. He was foreman of the grand jury I was before. He lives outside of Godley,. a right smart piece from my father’s farm. I was well acquainted with Mr. Long. I was in the sitting room when I told Long that defendant had got me pregnant. My baby was not born then. Mr. Long was the first person I told that the defendant had intercourse with me; didn’t tell my father. 1-Ie asked me, but I wouldn’t tell him who it was. 1-Ie did not ask me if it was Hugh nor did he ask me if it was one of my brothers. I knew a boy by the name of Pinkney Stanley. He came to our home. He did not take me to church, nor did he spark me; never went with me anywhere. I-Ie stayed around our home, but I never talked to him because I was no hand to talk to anybody. I never went out in the lot with Pinkney Stanley; did not go out there with him on Sunday night after I came home from Weatherford; did not stay out there nearly an hour in the night, until nearly 12 o’clock. It is not a fact that the next night after Ella and I got home from Weatherford some boy or .man met me in the lot at my father’s, and that I had intercourse with him that night. I never went out with anybody; was nobody there. I did not go out in the lot the second night after I got home; did not lie down with my clothes on, and Ella did not ask me to pull my clothes off, and I did not say it was none of her business, and I did not go out at the back door and stay nearly an hour, and Ella did not say, ‘Lottie, where in the world have you been, and what have you been doing?’ and I did not tell her it was none of her business. The only boy I went with was Elmer Prib-bles; don’t remember whether that was after I visited Hugh up here or before. I did not mail a letter here the Friday before I left. I never wrote a letter to any boy, and no boy told me be had got it. I did not write anybody here while I was visiting my sister. After I went home, my father stayed around downtown and was there every night. I slept with my sister Betty, younger than I am. I never slept by myself at home. She and I always slept together. After I returned from Weatherford, she did not visit here for a week or two, and I slept by myself. Whenever she went, I went with her except this time I visited Hugh. She had come up here with her mother before. 'My brother Lonnie was living at home. He is 21 years old. He is now married. I don’t remember whether he was married when I got pregnant or not. He has one child now over a year old. He did not marry before I made this visit here. He was up here then, and the day we came they said he left. I don’t know where he went, and he was not home when I returned. After I had been there awhile he came on the train; may have been a month afterwards. I did not make any visits after I came here with my father. Father brought me that time because Ella sent for us. At Hugh’s house my father slept on a pallet and I slept on a cot. He did not get in my bed during the night. I never knew him to wake me up during the night. He never bothered me. Ella came down and brought the baby when it was sick, and stayed three or four months. I don’t remember whether Hugh was about the place a good deal or not, or whether they moved out to Johnson county and back during the year or not. Hugh picked some cotton for Will, and Ella and the baby stayed with us at home. Hugh came back there a time or two. I never treated Hugh otherwise than nice, but I didn’t like him after he done me that way, was not nice to him. 1 did not visit Ella and Hugh about Christmas or before Christmas at Dr. I. E. Smith’s place at Weatherford, and they did not move to Florence Patrick’s place while I was here.”
    Redirect examination by Mr. Wilson: “Hugh Whitehead never had intercourse with me after I went back to Godley. After he had intercourse with me, and up to the time my child was born, I had intercourse with nobody else. One night while X was at Hugh’s place in Weatherford, I fixed the windows and doors to try to keep Hugh out. Me and my sister went out in the yard and got some sticks to put on my window of my room, and locked the door and bolted it. I told her I was afraid of some one getting in. I didn’t tell her who I was afraid of. I tried to get them to take me home before I did go home; tried to get them to take me home Saturday: told them I wanted to go home; that I had promised them I would be back; and he would not take me to the depot until Monday. When I was before the Johnson county grand jury, I had never been before a grand jury. I was excited when I went in there. I do remember telling Long at my home that Hugh was the cause of my condition.”
    Recross-examination by Mr. Martin: “At-the time I told Mr. Long about this, Hugh and Ella were living in Hood county, down there in the timber somewhere. I was fixing the windows at Weatherford because I got scared. I told Ella X was scared. She asked what I was afraid of, but I never told her what it was, because I knew I would be killed. That was while I was visiting my brother-in-law. I recollect I went back on Monday because I told father I would be back Saturday. They was a little bothered about getting their tickets, some way, and Ella and I went back Monday. I don’t remember what night I barred down the windows, or how many nights it .was before I left. It may have been the last night I stayed there. I came up to this trial Saturday ; stayed last night at Alice Love’s. That is where I am stopping now. My father is there with me. My lawyer came out there and went over my testimony to refresh my memory about all the important points in this case. They talked about Hugh Whitehead having intercourse with me. They never said how many times. I told them three or four times. They didn’t tell me to only swear to one time on the other trial. The lawyers talked to me this morning. They talked to me right smart last night, which was Sunday night. Nobody in the room but me and Mr. Wilson. I was at Mrs. Love’s this morning when I was talking to the lawyers. Mr. Haynes came up there and was talking to me this morning. Mr. Wilson didn’t. My father said he was going to get. Mr. Haynes to prosecute in this case. I don’t remember whether he said he was going to get Mr. Wilson or not. I have never talked over my evidence with anybody else since I was in court before; never talked to my father about it since I was here before. I never have told him who it was. My child is big enough to walk now. It don’t favor my father. The baby is red headed and I am red headed. I have got one brother, Jim, and one sister, red headed. My father is not red headed. Jim is at home. His eyes are blue and my baby’s eyes are blue. I don’t know what color my father’s eyes are. [Here the sheriff brought the child into court, having been requested so to do by Mr. Wilson, for the state.]”
    Redirect examination by Mr. Wilson: “This is my child. Hugh Whitehead is the father of it. Mr. Wilson was to see me last night about the time the train comes in.”
    Recross-examination by Mr. Martin: “I did not send for Mr. Wilson last night. I don’t know how long he stayed there. I don’t expect over an hour. He and I were in a room by ourselves.”
    Redirect examination: “Mr. Wilson was talking to some other witnesses too.”
    Ixrttie Whitehead, recalled on behalf of the state, examined by Mr. Wilson, testified as follows: “Before I went on the witness stand before, Mr. Wilson was told by me about Hugh Whitehead haring other acts of intercourse with me.”
    Cross-examination: “When I testified on the stand before, I just meant that Hugh only had intercourse with me once that evening. I don’t remember being asked if Hugh had intercourse with me at any other time on that visit, and that I said no. He had intercourse with me three or four times, but I don’t remember whether I so testified on the other trial or not. Before the other trial Mr. Martin and Mr. Temple had a conversation with me, in the private office of the county attorney, about iny testimony in this case. I don’t remember what I said to them, whether or not I said that the only time Hugh had intercourse with me was on that Sunday afternoon, and I don’t remember telling them that nobody else had intercourse with me.”
    Hugh Whitehead, the defendant, being duly sworn in his own behalf, examined in chief by Mr. Martin, testified as follows:
    “I am about 29 years old, am defendant in this case. Ella Whitehead is my wife. We have been married about five years. My wife was 14 years old, they claimed, when we married. I have known my father-in-law, IÍ. N. Whitehead, about eight years; first knew him in Johnson county; never knew him when he lived in Mississippi. He is from Mississippi. I was born in Alabama. He and I are not related in any way than by marriage that I know of. I have been living in Texas about 11 or 12 years; have one brother, and have a sister in Mississippi. My father has been dead about ten years and mother about seven years. After I married, I lived in Johnson county awhile; have lived there oil and on since I have been here. I worked for George McClung on his ranch. ,1 am acquainted with Norsworthy. who testified here. The last place I lived in Johnson county before coming to Parker county was on the Lum Glen place. I moved to Weath-erford about three years and first moved onto Dr. Smith’s place west of town; lived there, I think, about a month and a half. R. N. Whitehead and my sister-in-law, Bottie, came to see me while I was there, and stayed a couple of nights, I think; two or three nights. They stayed one night at the Smith place, and I moved over on the north side to the Florence Patrick place, and they stayed there one night. They helped us move. I had made arrangements to move before they came, and didn’t know they were coming before they got here. Nobody else came that time except Lottie and her father. I after-wards moved to Rushing’s place, south of town, near the Texas Female Seminary, and Lottie and her father visited us once there. They came together, and Mr. Harris was with them. I knew Mr. Harris before. He was a merchant at Godley. He came out Monday and ate dinner with us at 12 o’clock. That was Monday, after they had come Saturday. I was then working with Walter Shropshire on the farm for Mr. Rushing. Shropshire has testified here. He was working there when I went there. I got acquainted with him there. Judge Rushing had me hired by the month. Shropshire and I did the farm work and feeding and taking care of the. stock. Judge Rushing had a great deal of stock, cows, hogs, goats, horses, 'and a chicken ranch, and Shropshire and I bad to attend to those things. Rushing kept milk cows, and Shropshire and I did the milking. We quit the farm work about an hour by sun to attend to the things, at the house. Judge Rushing required us to do that, and by the time that work was over it was pretty late, about an hour after dark; never got done earlier, sometimes later. We did not eat supper before we did the chores, but after we got borne. It was on Saturday that Lottie and her father came to visit us. I remember that because we were working at Rushing’s, and I remember that my wife’s father stayed Saturday and Sunday. My wife’s father and I went walking around over Mineral Heights. I worked every day in the week; didn’t work on Sunday except doing the chores. Mineral Heights had been opened up as a new addition at that time. My father-in-law ate dinner with me that Sunday evening. We got hack from Mineral Heights, if I am not mistaken, about 3 o’clock, 3 or 4. That evening about an hour by sun I went up to Judge Rushing’s to do the chores. I remember I told my father-in-law he would have to stay until I got back, I would have to go and help attend to things. That was about half a mile from where I lived to Rushing’s place. Rushing lived in a big white house near the Seminary. We did the milking and feeding same as we always did, Shropshire and I. I don’t know exactly what time we got through that Sunday evening, but it was some time about an hour or hour and a half after dark when we got through. R. N. Whitehead was at my house when I got back. The following Monday he went home, and Lottie remained with us. 1-Ie and Harris left the house, and I went with them to Rushing’s, and told them goodbye there. I never had intercourse with Lottie Whitehead. I never went to her bed while my wife was gone and told her to keep her mouth shut, and got 'on the bed •and had intercourse with her, and told her, if she told it, I would kill her and her father, or kill her father. My wife and I had a little baby at that time, and the baby was sick and puny. I never on any night Lottie stayed there got up aud went to her bed and got into bed with her and had intercourse with her, and had intercourse with her while she was trying to fight me off. Our baby was about a year old at that time. Its mother had the principal care of it. I know Alec Hamilton; have known him seven or eight years. He -testified here yesterday on this trial. I know Watt May, wfio testified here; have known him about seven years I guess, maybe longer. I helped him gather corn last year after the other trial. I helped him gather corn one day. I made bond in this case about three weeks after the other trial, I tliink. I had been in jail from the time I was arrested up to that time. I was arrested in Hood county the 10th of January, and I made bond three weeks after my trial in the- spring of 1908. When I was arrested, I was living in Hood county. My family was there. I had land rented from Mrs. Stout, who had been Mrs. Rollins. A young fellow-named Jim Taylor was living on the place with us. My brother Pres was helping me make the crop. After I made bond, I did not go back to Hood county. I helped Watt May gather corn one day on the Holland place — the Holland who has testified here. 1-Ie was a stranger to me. That is the only time I ever saw him. I stayed at Holland’s house one day and night. I went there in a wagon with Watt May. I did not have any conversation with Watt May about the Whitehead family, that I was having a good time with them. I never told him I thought he could get some from Lottie; never told him nor anybody else that I was having intercourse with Lottie Whitehead. It is not true that we were out in the road under or between two elm trees talking with Holland and Watt May about taking them' to meet girls at Cleburne. If there was an elm tree there, I don’t know it. I was not out in the road at night at any time and had that conversation. I never heard that before Watt May testified here yesterday. He didn’t testify anything like that on the first trial. I have two children now. The last was born just a day or so after my first trial, next day I believe; born here in Weath-erford. I was not present when it was born.”
    Cross-examination by Mr. Wilson: “Lottie stayed a week with us while we lived on the Rushing place. I was at Whitehead’s when Dr. Davis made his examination. I was in the west room. I didn’t know what was going on. I was asleep. I didn’t get up and listen. I didn’t hear Mrs. Whitehead say she would heat the clothes off Lottie if she didn’t lay it on me. I did not talk to Pribble about what I heard that night, nor to Mary Whitehead. After the examination, I went back to Will Whitehead, one of my wife’s brothers, who lived on his father’s farm. If Mary was there picking cotton, I didn’t see her that fifty nor next day. _ The next day I went to Cle-burne with Will Whitehead after some house furniture; some bedsteads. I was fixing to move to Mrs. Rollin’s place then, Mrs. Stout now. I did not, after the examination, suspect they were going to lay it on me until I was arrested. I know Mr. Pribble. In the fall of 1907 I lived in Hood county. I picked cotton some on AVhiteheád’s place that fall that I moved there. I don’t remember going in a wagon with Pribble from Watt May’s farm down into Hood county in the fall of 1907. I knew Pribble’s boy Elmer. Pribble moved down in Hood county, but I don’t remember what time, and I moved down in Hood county two or three miles from him. I don’t remember going in a wagon with Pribble from my place down to Acton where he was going to buy some groceries, in December, 1907. I don’t know a young man named Ramsey. If I knew a boy named Ramsey at that time, I don’t remember. It is not true that, Ramsey sitting in the seat with Pribble, I told Pribble that I had something to tell him, some news, and that we rode on some distance and Ramsey got in the back of the wagon, and that Prib-ble told me to come over there on the seat, and that this was in December, going from my place to Acton, and that, when I got on the seat, I told him that Lottie was in a family way, or was pregnant. Pribble had a daughter married to one of the Whiteheads, and he lived on Whitehead’s place before he moved down in Hood county. I did not tell Pribble that I was afraid they were going to lay it onto me. I did not tell him about being present at the time Dr. Davis examined Lottie, and that I slipped out of the room and went around and listened, and that I heard Mrs. Whitehead say to Lottie that she would beat the coat off her if she didn’t lay it on me. I never heard nothing of the kind, and never told nothing of the kind to Pribble or to anybody. Before that time, in the fall of 1907, I had heard, but I did not know, that young Prib-ble was acquainted with Lottie and had been to see her. I had seen Lottie that summer and fall, I don’t know how many times. It is not a fact that in conversation with Pribble, going in a wagon to 1-Iood county, in the neighborhood of where we both lived, I told him that, if Elmer (meaning his son) wanted Lottie, that I could get her for him. I deny in toto that conversation; and he did not tell me that he had stopped his boy from going to see her, that he was too young to marry. Never was no remarks made like that at all. I know Pinkney Stanley. He was not over there where I was picking cotton in the fall of 1907. He was not there on the place while I was picking cotton that I saw. I had known him about a year before that time I think. I did not have a talk with him there about Lottie. I didn’t ask him, ‘Why don’t you do it to Lottie?’ and he did not tell me that he thought too much of himself, and I did not tell him that he could do it if he wanted to. I don’t remember that I went to the Whitehead farm the day after the examination of Lottie by Dr. Davis. I couldn’t be positive whether I stayed in Godley that next day or not; don’t know whether I left next day or the day after. It is not a fact that I went out to Whitehead’s place next day, and that Will Whitehead and Mary were picking cotton when I went to where they were. I don’t remember that I went out there the next day. I did not drive a wagon out there. If I went out there, I went afoot. I did not tell Mary, there in the cotton patch, in the forenoon next day after the examination by Dr. Davis at Whitehead’s that night, that Dr. Davis was there at Whitehead’s that night, and made an examination of Dottie, and that Lottie was pregnant, in a family way, and that I slipped up to the door and listened to what they were saying in there, and that they would not let Lottie use anybody’s name or would not use anybody’s name but mine; and I did not say, T may have to go to the penitentiary over this, but, if I do, it won’t be but two years, and, if I do, when I get out I am going to kill some Whiteheads.’ I never said no such stuff as that. • It is not a fact that in the afternoon of the same day, in talking to Mary, I brought up the same subject again about Lottie’s condition, and say I was uneasy about that matter, that I looked to be arrested any minute, that I was afraid they would lay it on me; and I didn’t say to Mary, ‘You and Ella (my wife) can get me out of this if you will swear that Lottie had her sickness on her after she came back from Weatherford.’ I am positive of that. I did not try to get her right there to swear that Lottie had her sickness ■on her after she came back; and she did not say she would not swear anything of the kind, but would swear that Lottie had her sickness on her just before she went up there, and pulled her clothes off that showed it on the very day she left. I did not on that day have a talk with Will Whitehead. Mr. Whitehead had not told me to tell Will to come to town, and I didn’t go out there ■and tell Will that Whitehead wanted to see him, and Will did not ask ine what he wanted. It is not a fact that in the morning Mary and I were talking, and Will picking along ahead of us and that he stopped, and said: ‘Hugh, what is the matter? I know there is something wrong. I can tell it from the way you look that there is something wrong.’ And I didn’t say, ‘Wait until we get to the end of the row and I will tell you.’ Nothing of that kind happened. I was not with them that morning at all. I did not talk with Mary and then go down to the barn with Will Whitehead, and didn’t tell him there that Dr. Davis had been there the night before and made an examination 'and that Lottie was in a family way, and he did not say, T suppose it is about that my father wants to see me because he don’t often send for me' when I am busy.’ We never had no such talk. I didn’t tell Will right there that Lottie was just a child and I was afraid she would, lay it onto me, and that I wanted him to bring my wife out there; that, if she did, it might excite her. I deny all that conversation. I remember being in a wagon with Watt May going up to where he had bought a crop from Holland to help him gather some corn. I don’t remember talking about lewd women on that day, or women that we had had things to do with or might have. If any words were spoken about women, I don’t remember. Watt May and I were not no friends or anything like that. I just hired to him to help him gather corn. Lewd women or anything of the kind, were not mentioned. It is not a fact we talked on the subject of women, and that I asked Watt if he had anything new, and he did not tell me he had just about cut that business out, and he didn’t ask me if I had anything, and I didn’t tell him, ‘Yes,’ and he didn’t ask me who, and I did not tell him ‘Lottie,’ and he didn’t say, ‘Isn’t she pretty young, and ain’t you liable to get into trouble?’ and I didn’t tell him that I had not got into trouble yet. I helped him one day gathering corn. I stayed at Holland’s house that night. Holland is here as a witness. There were no men on the.place that night except Holland, Watt May, and myself. I did not help feed the mules. It is not a fact that after supper one of them said, ‘Let us go out and hay the mules,’ and we didn’t go out and give them hay and then lie down under some trees. I was not there at supper time or feeding time. I was there that night, in the night. We three did not go out and lie down under trees and have a talk. I went to rent this place that I rented from Mrs. Rollins, about a quarter of an hour, by sun, and never got back until .about 10 o’clock that night and they had gone to bed when I got back and I slept out on the gallery at the front of his house. It is not a fact that I was talking with these fellows that night, and that Holland and I talked about bawdyhouses at Cleburne, and he did not tell me that he was not onto the ropes of such business. If his wife was about to be confined, I don’t remember nothing about his wife. I didn’t tell Holland that I knew every stairway in Cleburne, and I did not propose that if Holland would bear the expenses that May would, furnish a hack and I would have the Whitehead girls, Mary and Lottie, down there on the first Monday, and that after we got there we would go out to Nolán and stay all night. There is a river somewhere there they call Nolan. I don’t remember which way it is from town. I didn’t tell Holland right there that I could do anything I wanted to with Mary and Lottie; that whatever I said they would do. Holland didn’t tell me that he always bore his share of the expenses. No such talk as that ever happened. I never had that kind of talk at any time. It is not a fact that at that time I asked Watt May to let me have cotton to pick, or Holland eithér. I didn’t pick cotton for any one nor did I ask them for cotton to pick, arid I did not tell them that I would bring Mary and Lottie down there with me to pick cotton, and we would all have a good time.. Watt tried to hire me, and I would not hire to him. X didn’t tell Holland and Watt May or either of them on that occasion that I would bring Mary and Lottie down there with me to pick cotton, and we would have a good time. After Lottie’s trip up here, I did not tell Mrs. Whitehead that, when Lottie was here, she locked the doors of the room she was in one night; that she was making a noise in there, and we all got scared, not knowing what was the matter, and that my wife tried to get in the door and it was thumb ibolted, and that I ran out to the wood pile and got the axe; that I was afraid to go in the room without the axe for fear that Mexicans were in there. It is not true that Lottie got so tired of me going to her that she begged me not to do it, and I would not stop until she locked the door. It is not a fact that I tried to get in her room, in her window, and that I ran around and told my wife that I just been out to the wood pile and got the axe, that I was afraid to go in there; and I was not trying to get in the girl’s room that night. I deny telling that to Mrs. Whitehead, old man Whitehead, or Mary Whitehead. There didn’t anything like that ever occur. I went to Cleburne with Will. I don’t remember whether the second day after this examination or not. I went one day that week. It seems like I went by Godley; but I won’t be positive. I think we turned off before we got to God-ley; went the Cleburne road. I don’t think Will drove by his father’s house in Godley. I was at Whitehead’s house until I moved, some two or three days. I was already fixing to move to Mrs. Rollins’ place, done rented the place, and was goiDg to move some time that week, and I don’t remember what time I moved, but it was some time during that week. I couldn’t say how many days I was at Whitehead’s house in Godley after the examination. It is not on any occasion when counsel asks if I said to Mary I might have to go to the penitentiary that Mary said, ‘No,’ that I knew her father would not penitentiary any innocent man, that, if I was not guilty, I need not he pn-easy. No words like that ever passed. She did not tell me, ‘You know whether you are guilty or not, and you won’t be punished if you are not guilty.’ ”
    Redirect examination by Mr. Martin: “I have stated that when I was at Holland’s I left to see about renting a place. I rented the place on that occasion from Widow Rollins. After my first trial, I made bond and my bondsmen all live in Parker county.”
    T. P. Temple, J. M. Richards, and Preston Martin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexe:
    
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   PRENDERGAST, J.

The appellant was indicted and convicted for rape on a girl less than 14 years of age, charged to have been committed on or about May 28, 1907. He was given the lowest penalty, five years.

1. The appellant’s first ground of complaint is in effect that the evidence is insufficient to sustain the verdict. We have thoroughly and carefully gone through the evidence several times, and have reached the conclusion that the evidence is ample, and the great preponderance of it fully sustains the conviction. We do not propose to give the testimony here. That will be for the reporter to give in reporting the case.

In passing on the sufficiency of the evidence to sustain the conviction, this court should not, and does not, determine the issue of fact for itself. All it determines is whether or not there was sufficient evidence, if believed by the jury in the lower court, to sustain the conviction. The sufficiency of the evidence is a question of law that this court passes upon. It is not given the power nor authority to pass upon the weight of the testimony or the credibility of the witnesses. That is exclusively for the jury and lower court.

The record shows that there were many contradictions in the testimony of the various witnesses. Some were supported, others disputed in material facts, by other witnesses. All of that was for the jury and the lower court. One of the appellant’s main contentions was that the father of the girl or one of her brothers was the guilty party, and that the child she had, the fruit of the rape, was not the child of the appellant, but of her father or one of her brothers. On this point we will say that there is no testimony, either direct or circumstantial, in our opinion, which justifies any such contention, or which even raises a suspicion that either her father or brother was the guilty party.

2. Appellant next complains of paragraph 4 of the charge of the court, which charge is as follows: “The defense offered evidence of several witnesses as to what the witness Lottie Whitehead testified on a former trial of this case, as to the number of times the defendant had had intercourse with her, for the purpose of impeaching said Lottie Whitehead. The state was permitted to prove by the said Lottie Whitehead what she testified, that she told to Jim Wilson, the then county attorney of Parker county, as to the number of times defendant had had intercourse with her, for the purpose of corroborating her as a witness in this case; and this testimony of the witness Lottie Whitehead, as to what she testified she told Jim Wilson at the time of the other trial of this case, was offered by the state for the sole purpose of corroborating the witness Lottie Whitehead, and you cannot consider it for any other purpose, and you will not consider said evidence of Lottie Whitehead, as to what she said she told Jim Wilson at the-time of the former trial of this case, for-any purpose unless you believe the same corroborated her testimony given in this case before you, and as to 'whether the said testimony does corroborate the said witness you are the sole and excessive judges”—because upon the weight of the evidence, is not upon any material issue raised by the evidence, was misleading to the jury, in that it assumed that Lottie Whitehead told the truth in talking to Jim Wilson at the other trial, and that her testimony, being true, corroborates her testimony given at the trial at this term of court, and that it was error for the court in said charge to assume to the jury that Lottie Whitehead told the truth when talking to Jim Wilson at the former trial, as that was the province of the jury, to decide whether or not she was telling the truth. It is well settled in this state that when a witness is thus attacked, as this record shows Lottie Whitehead was, her testimony can be supported by proving what she had told before the trial. This charge of the court is not subject to the criticisms claimed against it, and is substantially correct, and there was no error in giving it.

3. Appellant next attacks paragraph 2 of the court’s charge, which is as follows: “If you do not believe from the evidence beyond a reasonable doubt that the defendant had carnal intercourse with Lottie Whitehead, and that she was at the time under the age of 15 years, you will acquit the defendant”—because it was misleading, in that it assumed that the defendant had carnal intercourse with Lottie Whitehead at some time when she was under the age of 15 years, and is upop the weight of the evidence given in the negative form. It is not permissible to take separate paragraphs of a charge, but the whole of the charge, especially on that subject, is to be taken and considered together, and, when that is done in this ease, clearly there was no error in this charge, and it was not subject to the objections urged against it.

4. What we have just said of the preceding matter is applicable to appellant’s next complaint that the court refused to give his requested charge to the jury, as follows: “The jury are instructed that you are not required to believe that the defendant did commit the act charged, but, if you have a reasonable doubt whether or not he committed the act, you will acquit defendant.” In addition, this requested charge was clearly embraced in the charge of the court on the same subject, and there was no error in refusing this charge under the circumstances.

5. The next complaint is that the court erred in not instructing the jury that the testimony of the witnesses T. P. Pribble, Pinkney Stanley, Will Whitehead, Mary Whitehead, Mrs. R. N. Whitehead, and M. O. Holland, all of whom testified in rebuttal after the defendant had introduced his testimony and he himself had testified, in not limiting that testimony alone to impeaching testimony of the defendant. The testimony of each of these witnesses not only disputed the appellant in his testimony on material issues, but much of their testimony was of independent facts, tending strongly to show that the appellant was guilty of the offense charged, and the testimony of each tended strongly to support the testimony of the witness Lottie Whitehead, who testified positively and clearly to the charge of rape by the appellant on her. The appellant did not request any written charge on this subject. It would have been improper for the court to have given such a charge limiting their testimony upon this point, and, of course, no error was committed in not doing so.

6. Appellant’s first bill of exceptions does not show clearly what the matter objected to is. It appears therefrom that, while Lottie Whitehead was on the stand being cross-examined by the appellant’s attorneys, they asked her if the child did not favor her father, and she answered that it did not. Thereupon the state’s attorney asked the sheriff to bring the child before the jury. While the sheriff was gone for the child, the witness Lottie Whitehead upon further examination by the defendant’s attorneys testified: “The baby is red headed and I am red headed. I have one brother, Jim, and "bne sister, who are read headed. My father is not red headed. Jim is at home. His eyes are blue and my baby’s eyes are blue. I don’t know what color my father’s eyes are.” Thereupon the sheriff arrived with the baby, and placed it in its mother’s arms, who was still on the witness stand, in the presence of the jury. Counsel for the state then asked the witness if that was her child. She said it was. He then asked who was the father of the child, and she said Hugh Whitehead. Appellant’s attorneys thereupon stated to the court: “I object to that as a conclusion. I object to them offering the baby in evidence, and saying the defendant is the father of it.” The court then announced: “If you object to the baby being here in the court, I will have it taken out.” The appellánt’s attorney replied: “I ask that the question be withdrawn from the jury.” The bill shows the court then overruled the motion, and the defendant’s attorneys said: “Note the exception. They offer the baby and ask who was the father of it.” And the defendant’s attorney then said: “I am not making any objection to that.” The court said: “The baby will be taken out if you ask that it be taken out.” The bill then proceeds that the defendant then and there excepted to the action of the court in permitting said baby to be in the lap of the prosecutrix while she was testifying in the presence of the jury, and permitting her to testify that defendant was the father of the child, for the' reason the same was highly prejudicial to the defendant, and calculated to prejudice the jury against the defendant. The court overruled defendant’s objection to said testimony and proceedings, and permitted the same to go to the jury as evidence to which the appellant objected. The court in allowing the bill qualified it, or stated as follows: “The baby was not offered in evidence except in this way: It was brought into court and placed in its mother’s lap without any objections on the part of the defendant, and, if the defendant had objected to it being brought into court, such objection would have been sustained; and the court stated several times, while the baby was in its mother’s lap, that it would be taken out of the courtroom if anybody desired it, and the defendant did not request that it be taken out.” It seems from this that the appellant was attempting to show by resemblance of the baby to its mother’s father or her brother that one or the other of them was the father of it, and guilty of the rape upon the witness Lottie Whitehead. It seems, further, that they made no objection to the child being brought in, seemingly desiring its presence for the purpose of showing its resemblance to the witness’ father or brother. Eor some reason or in some way not explained, the result of all this was not as anticipated by appellant’s attorneys. ' It is certain from this bill, the substance of which we have given above, thaf there was no error of the court in connection with the baby being brought into the court and not taken therefrom, because the court says it was not objected to by the appellant at any time and that he stated repeatedly that, if it was desired, he would have the baby removed.

So far as the testimony of the witness that that was her baby and that the appellant was the father of it, there was no error in such testimony. Precisely such evidence as this in a seduction case was held to be proper evidence. Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477.

7. The next bill shows that, while the witness Lottie Whitehead was on the stand on cross-examination, she was asked by the appellant if her brother-in-law, Brace Up-church, did not have intercourse with her about two years prior to the time she gave birth to her baby, and if she did not tell the appellant’s attorneys, T. IP. Temple and Preston Martin, before the trial of this case the first time, that the first person who ever had intercourse with her was her brother-in-law, Brace Upchurch, and became pregnant when she was only 12 years old, fixing the time, place, and circumstances when this occurred, unnecessary to be detailed here, to which questions and answer thereto the state objected because the defendant was on trial for rape on the witness, who was under age of consent and before she arrived at the age of 15 years, and because the time claimed by defendant that she stated in her conversations to the defendant’s attorneys that Upchurch had intercourse with her was too remote. The court sustained these objections, and did not permit the witness to answer them.

The next bill shows that the. defendant thereupon offered to prove by the defendant’s attorneys, Temple and Martin, the conversation with the said Lottie Whitehead in May, 1908, just before this case was tried the first time, and, if permitted by the court, would have testified that the witness in said conversation with them stated that Brace Upchurch, her brother-in-law, was the first person who had ever had intercourse with her, and that had occurred about two years before the birth of her child, detailing the acts of the intercourse, unnecessary to detail here. The state objected to this testimony because it was too remote; that this was a prosecution of the appellant for rape on the witness who was under the age of consent, and that, if she had had intercourse with other parties, it would not be used as evidence against the witness on the trial of this defendant. The appellant by the bill then further states: “That the defendant offered this testimony for the purpose of contradicting the witness Lottie Whitehead, and for the purpose of impeaching her testimony when she swore that the defendant was the only person who ever had intercourse with her,” and to show that the defendant was not the person who had intercourse with her, and that another person, said Upchurch, had intercourse with her. The court sustained the objections and excluded the proffered testimony.

Neither of these bills can properly be considered by this court.

The first one for the reason that it is not stated what would have been the answer of the witness Lottie Whitehead to the question of whether or not her brother-in-law, Upchurch, had had intercourse with her about two years before the birth of the baby. She might have testified he did.

The second one, which is based on the first, for the same reason, and in addition, the second does not show with sufficient certainty that she had testified that the appellant was the only person who had ever had intercourse with her, this bill on this point being as follows: “And be it remembered, further, that the defendant offered this testimony for the purpose of contradicting the witness Lottie Whitehead, and for the purpose of impeaching her testimony when she swore that the defendant was the only person who ever had intercourse with her.” This by no means makes it clear that she had ever testified any such thing, but rather indicates that they were anticipating that she would so swear, or that, if she swore on the subject, to impeach her testimony when she did swear that the defendant was the only person who had ever had intercourse with her.

And also these matters in the bills are stated as objections, not as facts. Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, and authorities therein cited.

However, we do not base our decision entirely on the insufficiency of either or both of these bills of exception. This prosecution was for rape committed upon a girl not 14 years old at the time it occurred. The question of consent can have no effect whatever upon the defendant’s guilt. Even if she had testified in the most positive way that she had consented, and that she was as much instrumental or more so than the appellant was in the commission of the act, he would nevertheless have been guilty.

It has often been decided and is well settled in this state that previous acts of intercourse with the appellant are admissible when offered by the appellant only for the purpose of tending to show the consent of the woman at the time when the rape is charged to have been committed, and the authorities uniformly restrict such testimony to acts of intercourse with the appellant alone. Lawson v. State, 17 Tex. App. 302; Pefferling v. State, 40 Tex. 486; Dorsey v. State, 1 Tex. App. 33; Rogers v. State, 1 Tex. App. 187; Jenkins v. State, 1 Tex. App. 346; Mayo v. State, 7 Tex. App. 349. A great many other cases might be cited, but we regard this as elementary in our state now.

We also regard it as well settled in this state that where the question of consent cannot be material, as in cases of rape of a child under the age of 15 years, testimony of other acts of intercourse with some other than appellant cannot be proved by the appellant unless the fact of intercourse at all is questioned, or such evidence shows such act was at a time that such other person might be the father of the child. The fact of intercourse with Lottie Whitehead is shown without shadow of doubt by the birth to her of a child. The accused act with Upchurch was claimed to have been two years before the birth of her child — a date making it impossible for him to be its father. Bice v. State, 37 Tex. Cr. R. 43, 38 S. W. 803; Knowles v. State, 44 Tex. Cr. R. 322, 72 S. W. 398; Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555. So in our opinion there was no error committed in refusing to permit any such evidence as shown by either or both of these bills.

8. The next bill shows that while the appellant’s wife, Ella Whitehead, was on the stand testifying for him, she offered to testify, and would have testified, if permitted, that before she was 14 years of age her father raped her three separate and distinct times, each time a short period after the other; and the bill shows that the particulars. of each act would have been testified to in detail by the appellant’s wife. The bill states that the defendant’s object and purpose in proposing to introduce this testimony by his wife, the sister of the prosecutrix, Lottie Whitehead, and the daughter of R. N. Whitehead, the father of both of. them, was for the purpose of showing that the father had had intercourse^ with Lottie, her sister, who was living with him at the time the state claims appellant has intercourse with her, and for the purpose of explaining why Ella Whitehead did not report to her father Lottie’s conduct in being fast .with men and boys, and getting up at night and going out into the yard and meeting them. This testimony was objected to by the state because the appellant was charged with rape upon a female under the age of consent, and it made no difference if other parties had had intercourse with Lottie Whitehead, before she was 15 years of age, he would be guilty of rape, which objections were sustained by the court and the evidence excluded.

The next bill shows that while the state’s witness R. N. Whitehead, the father of the said witness Ella Whitehead and also the .father of the prosecutrix, Lottie Whitehead, was being cross-examined for the purpose of impeaching him and for the purpose also to show that he had been guilty of intercourse with his daughter Lottie, and for the purpose of thereby showing that he might be the father of her child, the defendant asked and proposed to prove by him if he had not had intercourse with his daughter Ella Whitehead, the wife of the appellant, about four years before that time when she was just 13 years of age and during the year just prior to the time she married the defendant. These three accused rapes, which appellant sought to ask him about, were the same that the appellant’s wife and the daughter of R. N. Whitehead had just proposed to testify about as shown above. The bill further states that the defendant’s object and purpose in asking said witness said questions was to corroborate his daughter Ella, and to impeach Lottie wherein she had testified that defendant was the only person who had ever had intercourse with her, and that defendant was the father of her child; the contention of defendant being that R. N. Whitehead, the father of Lottie Whitehead, is the one who had intercourse with his daughter Lottie, and is in all probability the father of her illegitimate child, instead of defendant. The state objected to this testimony because it was immaterial whether the witness R. N. Whitehead ever had intercourse with either of his daughters, Ella or Lottie, as this was a prosecution for rape on a female under the age of consent. The court sustained the objection and the defendant excepted. We cannot consider this bill, for the reason that it does not state that the witness R. N. Whitehead would have testified to any such thing. On the contrary, . the whole of it shows, in effect, that he would not have testified to any such tiling. However, if we could consider this bill, even if the witness would have testified to any such thing, the testimony under no phase of the case and under no circumstance would have been admissible on the trial of this case for any purpose. What we have said and the authorities we have cited above are applicable to this.

How it can possibly be contended, and what possible connection there could be to show, that because R. N. Whitehead, some four years before the offense charged in this case was committed, raped another party, and is therefore guilty of this, is inconceivable to us. It has been universally decided by this court and is now elementary that even the appellant could not be proven to have committed other crimes, whether like this one or not, for the purpose of showing that he was guilty of this, much less could it be shown that another party not on trial, and not the defendant, was the guilty party, instead of the appellant, by showing that the witness some four years before this crime was committed had himself committed a like crime for the purpose of showing that he was the party who committed this crime. Merely to state the question is a complete answer thereto against the appellant.

9. The next bill shows that while the witness Ella Whitehead, wife of the appellant, was on the stand, and after she had testified on direct examination for him as follows: “That on the Sunday night that she was down at Godley visiting her father, and, after she had gone to bed that night, she saw her sister Lottie get up and walk out into the yard, and meet a man and walk off towards the lot with him; and be it further remembered that on cross-examination the state’s counsel asked the witness if she told her father of this at the time. She answered that she did not, and was then asked by the state why she didn’t tell him, and she answered, T was afraid he would get after me about it; that he would not believe anything I said; that he had seen her do things himself that she ought not to do, and never said a word to her. I know he would not believe me. He would have gotten mad at me. I don’t suppose he would have gotten up and looked if I had told him. I know it was no good for me to say anything to him about it, as he did not care’ ”— the defendant offered to prove by her, as a further explanation why she did not tell her father, that she had some other sisters that had fallen and gone astray, and that her father knew that, and that Lottie had been sent home from witness’ house the year before because she was conducting herself badly and that her father knew that; that the witness did not tell him about Lottie getting up in the night and joining a man outside, because he had seen her do things that she ought not to do; that her father had mistreated her, the witness, before she was married, forcing her to have intercourse with him when she was between 13 and 14 years of age. The state objected to this because the same did not furnish any reason or excuse, and that it was immaterial and irrelevant, and calculated to unduly prejudice the state’s case, which objections were sustained by the court. The witness, as shown by the bill, had already testified to all that was permissible on this subject, and the court did not err in excluding the proposed testimony by her, as shown by this bill.

10. The next bill shows that appellant offered to introduce his bail bond in the case for the purpose of showing that several of the persons who had signed it were jurors upon the trial of this case the first time for the purpose of corroborative evidence of the defendant having a good character and reputation in the community in which he lived. Upon objections by the state, this was properly excluded.

However, this bill is not sufficient for us to pass upon it, even though we have done so, because it does not show that any of the sureties on said bond were former members of the jury which tried him, nor that his good character and reputation had been attacked. The bill does not show either of these things. Even if it had, it would have been improper to have admitted the testimony.

11. The next bill shows that when J. 0. Wilson, Esq., the attorney who had been employed by R. N. Whitehead, the father of Lottie, was making his closing argument for the state, the following proceedings occurred: “ ‘Where is the evidence of conspiracy? Where is it? Put your hand upon it. I tell you, men, if you call this conspiracy, and you should ever be so unfortunate, and I hope to God you never will be, as to have to bring your girl to the courthouse who has been raped.’ And be it remembered that at this point the attorney for the defendant said: ‘If the court please, that is an improper argument.’ And be it further remembered that said J. 0. Wilson, Esq., thereupon said: ‘If you ever have to come to the courthouse to prosecute a man, it is perfectly proper.’ And be it further remembered that defendant’s counsel thereupon said: ‘No ; it is not. It is improper for an attorney to make a personal application of the matter to the jury; what they would do. This jury would be incompetent to sit on the trial of a case of their own family. It is not proper, and I take a bill of exceptions to it. They would not be competent jurors to try the case of one of their own family.’ And be it further remembered that said J. 0. Wilson, Esq., continuing the closing argument for the state before the jury said: ‘If this is evidence of conspiracy, the fact that this poor old man, with a heart bleeding at every pore, would do all that he could do to bring the guilty man to justice, would see the witnesses, would notify them of the day set, when I would tell him to do it, if that is .sufficient evidence of conspiracy, then if any of you men are ever so unfortunate as to come with one of your girls under age — ’ And he it further remembered that the defendant by Ms attorney then and there again escepted to the remarks of said J. 0. Wilson, Esq., for the reasons that the attorney for the state should not make a personal application of a supposed case to the members of the jury, and that said remarks tended to prejudice the rights of the defendant before the jury. And be it further remembered that the court said: ‘All right, you may have your bill of exceptions.’ And be it further remembered that said J. O. Wilson, Esq., continuing his argument to the jury, said: 'When you come to the court and present into the jury, you say, “Instead of taking this man’s life, I am going to let the law take its course. I am going to be a law-abiding man, going to resort to the courts of the country.’ I will ask if they could not prove same conspiracy against you? If this is evidence of conspiracy, couldn’t they prove it against you? If you resorted to the law, without taking human life? If you see fit to do as this old man has done, resort to the courts of the country, don’t you suppose it would show up that you had employed lawyers or a lawyer; don’t you suppose they would show up that when you had heard of a man that had said something that would be strong corroboration, that you would go or send somebody to him? If you have, then the defendant himself, though his attorney would ask you the infamous, ‘Didn’t you hire so-and-so? Didn’t you offer to pay so-and-so?’ and all that. And be it further remembered that the defendant by his attorney then and there again excepted to the foregoing argument to the jury, for the following reasons, to wit, that such a presentation of supposable assaults that might happen to the homes and families of some of the jury was an improper personal appeal to the manly pride of each juror to protect the innocent daughters in their own families, and was calculated to arouse the prejudices and passions of the jurors, inflame their minds against the defendant, and cause the jury to lose sight of evidence submitted and upon which a verdict should be desired by the state. And be it further remembered that defendant by his attorney then and there asked the court to withdraw the aforesaid remarks of the attorney for the state from the jury and instruct them not to consider the same, which motion the court overruled, to which action of the court the defendant then and there excepted and herewith tenders his bill of exception in this case, and asks that the same be signed, approved, and made a part of the record in this cause, which is accordingly done.” The appellant did not request in writing a charge to the jury to withdraw any or all of these remarks. The bill is wholly insufficient, in that it does not .within.itself show this court the facts of the ease and the testimony of the witnesses and the attack that had been made upon them, or any of them, nor any such facts or circumstances as within itself will show that the said remarks or argument of the attorney representing the state in any material way injured the rights of the appellant. If it were permissible to go outside of the bill of exceptions for the purpose of showing that such remarks under the attacks that were made on the state’s ease, and each of the witnesses, and of the most outrageous crirqe that had been committed, it, might not be difficult to show that the judge of the lower court did not commit any reversible error in not sustaining the appellant’s various objections to the speech of the attorney for the state. We say this because the bill does not give .us of itself sufficient information to rule otherwise than we do on this bill of exception.

12. The next bill of exceptions states that, while the said Wilson was making the closing argument for the state, he said: “Ella Whitehead says that she was lying with her head to the foot of the bed, and Lottie gets up, and goes out and joins a man, and Ella does not tell her father and mother because she knows he would not get up to see, and her father would not get up to see.” The appellant objected to this on the ground that it was unfair to argue before the jury that the witness Ella Whitehead did not tell her father of seeing Lottie leave her bed one night and meet a man, and therefore the witness Ella Whitehead was not telling the truth in regard to the alleged acts of Lottie; that it was unnatural that the witness Ella would not tell her father, and therefore she was not telling the truth, and defendant alleged, as a reason why said argument was unfair, that the witness Ella had a good and sufficient reason for not telling her parents of the acts of Lottie, which reasons are shown to the court by the statement of facts herein, and which were not permitted to go before the jury as evidence in this case, and which evidence showing the reasons of Ella Whitehead in not telling her parents of the acts of Lottie on the night in question had been offered by the defendant in this cause and had been excluded on motion of the state, all of which is more fully set out and shown by the statement of facts herein filed.” After the court had overruled the exception of the defendant, said Wilson in his closing argument to the jury, said: “Tou know the court permitted you to prove every reason you had.” The defendant then excepted to said remarks on the ground that it tended to prejudice the defendant before the jury by intimating that the said Ella Whitehead had no reason whatever for not telling her father of the acts above mentioned of Lottie, and the jury were therefore permitted to infer that it would have been most unnatural for the witness Ella not to have told her father of said acts of Lottie, and that therefore Ella was not telling the truth; and for the further reason that the defendant had attempted to offer in evidence the reasons why-said Ella did not tell her father, all of which was known to said counsel for the state, and for the further reasons that said statement to the jury was not a fact, for, as fully shown by the statement of facts, the defendant was not permitted to show every reason of the witness Ella Whitehead. And defendant further objected to the action of the court in permitting the counsel for the state to argue before the jury that the absence of any reason in the record why the witness Ella Whitehead did not tell her father was a strong circumstance to discredit her testimony, and asked the court to withdraw such argument from the jury and instruct it not to consider the same, which motion the court overruled.

An examination of this bill, the substance of which we have given above in full, will show that in and of itself it does not sufficiently disclose to the court the testimony or lack of testimony shown by the record so as to properly present it to this court and show any error therein. Reference is repeatedly made to the statement of facts without showing what the statement of facts shows upon that subject. As was said of the last bill of exceptions above, discussed, we might say of this, too, that perhaps if it were permissible to go to the statement of facts for the full information about this bill it might be amply shown thereby that the argument of the county attorney in the respects complained of was fully justified.

The appellant in this case did not request in writing a charge excluding these remarks of the county attorney. There is no error shown by this bill of exceptions which would justify ns in reversing this cause.

There being no reversible error shown in this case, the judgment is affirmed.  