
    VALDEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Courts (§ 62) — Special Terms — Power to Call.
    The act of the Legislature authorizing a judge to call a special term of the court is constitutional.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 207, 210; Dec. Dig. § 62.*]
    2. Criminal Law (§ 1118) — Appeal — Review— Continuance.
    Where neither the motion for a continuance, which admittedly did not conform to the statutory requirements, nor the motion for a new trial, stated what the defendant expected to prove by the witnesses which he might desire to use, and it did appear that those witnesses knew nothing of the immediate transaction, the action of the court in overruling the motion will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §, 2926; Dec. Dig. § 1118.*]
    3. Witnesses (§ 40) — Competency— Child.
    Where the girl whom the defendant was charged with raping was only nine years old, but gave a clear, concise recital of the event, and was fully informed that she would be punished if she swore falsely, she was a competent witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.*]
    4. Witnesses (§ 79*) — Competency of Witnesses — Province of Court.
    The competency of a child as a witness is a question for the court, and a requested charge on that issue was properly refused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 201-204, 216; Dec. Dig. § 79.*]
    5. Rape (§ 48*) — Evidence — Subsequent Declarations of Prosecutrix.
    Where a nine year old girl, who had been raped, met her mother near the scene, and not more than 10 or 15 minutes thereafter, while still laboring under the excitement incident to the commission of the offense, and immediately related the occurrence to her mother, her statements so made were admissible as part of the res gestse.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. §§ 67-69; Dee. Dig. § 48.]
    6. Criminal Law (§ 1171) — Trial—Misconduct or Prosecutor — Argument.
    In a prosecution for rape, a remark by the district attorney that there should be speedy trials and prompt convictions or mob law would result, while improper, does not require a reversal of the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. 1171.]
    7. Criminal Law (§ 1037)— Appeal — Presenting Matters in Lower Court — Misconduct or Attorney.
    Remarks by the prosecuting attorney alleged to be improper will not be reviewed, where no charge was requested from the court in regard thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. ' 1037.]
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Jesus Valdez was convicted of rape, and hie 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 & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of rape, and his punishment assessed at imprisonment in the penitentiary for life.

A special term of the district court was called by District Judge Mullally, at which appellant was indicted, tried, and convicted. Appellant, in proper motions and bills of exception, assails the order calling the special term of the district court, drawing and impaneling the grand jury, and impaneling the special venire of jurymen before whom he was tried. He contends that the act of the Legislature authorizing a judge to call a special term of court is unconstitutional. All these questions have been decided adversely to appellant’s contention in Ex parte Young, 49 Tex. Cr. R. 536, 95 S. W. 98, Ex parte John Boyd, 50 Tex. Cr. R. 309, 96 S. W. 1079, and McIntosh v. State, 56 Tex. Or. R. 134, 120 S. W. 455.

The next bill complains of the action of the court in overruling his application for a continuance. The motion does not meet the requirements of the Code; in fact, appellant’s counsel in an unsworn application states he cannot make a statutory showing. Under such circumstances we would not feel authorized to review the action of the trial court, as in the motion for a continuance nor in the motion for a new trial is it stated what appellant expects to prove by the witnesses he states he may desire to use. It is made clear that the witnesses named in the application could know nothing of the immediate transaction for which appellant was being prosecuted.

The girl alleged to have been assaulted was only nine years old. Upon objection being made to her being permitted to testify, she was examined by the court, and under its direction, and the court held her competent to testify. We have read the testimony on this examination, and do not think the court erred in so holding. She gave a clear, concise recital of the events transpiring, and was fully informed that she would be punished if she swore falsely.

Neither did the court err in refusing the special instructions requested in regard to this girl’s testimony. As to whether she was a competent witness was a matter for the court to decide, and this issue should not have been submitted to the jury.

The girl went to her uncle’s (the appellant) after some plates. While there she says he raped her. She started home at once, and on the way was met by her mother. The girl was still laboring under the excitement incident to the commission of the offense, and then and there detailed to her mother the entire transaction, and on the trial of this case her mother was permitted to testify to what her daughter told her. We think it clearly res gestas and admissible. Not more than 15 or 20 minutes had elapsed according to the girl’s testimony, and her mother would still have her laboring under the excitement incident to an offense of this, character,

The remark of the district attorney that “we should have speedy trials and prompt convictions, or mob law will be the result,” was improper, but not of that harmful nature under the facts in this case which would necessitate a reversal thereof.

The other remarks complained of, no charge was requested of the court in regard thereto, and under such circumstances we do not deem it necessary to comment thereon.

We have taken each of appellant’s bills of exception, although they were not filed within the time permitted by law, and we do this for the reason that appellant was sentenced to imprisonment for life in the penitentiary, and the attorney who defended him was doing so under appointment by the court, receiving no compensation for his services. Mr. Maney is to be commended for the able defense he made under such circumstances, but after a careful review of the record we are of the opinion no reversible error is shown in the record. The criticisms of the court’s charge are without merit.

The judgment is affirmed.  