
    MASON v. STATE.
    (No. 11055.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    Rehearing Denied Jan. 18, 1928.
    1. Rape <&wkey;5l(l) — Evidence held to sustain conviction of rape.
    Evidence held to sustain verdict convicting defendant of rape of stepdaughter.
    2. Criminal law <&wkey;>I 171 (I) — Argument of private prosecutor, if error, held harmless, where evidence warranted conviction, and defendant received minimum term.
    Statements, in argument of private prosecutor to jury, if error, held harmless, where evidence warranted conviction, and defendant received minimum term of imprisonment.
    3. Criminal law1 <&wkey;720(7) — Argument in rape case that testimony to rupture of hymen was corroborating held legitimate.
    Argument, in prosecution for rape, that fact that doctor said that hymen of prosecutrix was ruptured, was circumstance corroborating testimony of prosecutrix, held legitimate, where doctor testified that hymen of prosecutrix had been ruptured.
    On Motion for Rehearing.,
    4. Criminal law &wkey;>l 159(2) — .Court of Criminal Appeals will not reverse on facts, unless evidence, viewed most favorably to state, fails to make guilt reasonably certain (Code Cr. Proc. 1925, arts. 706, 848).
    Court of Criminal Appeals will not reverse conviction on facts, unless evidence, when viewed in strongest light from standpoint of state, fails to make guilt reasonably certain, under Code Or. Proc. 1925, arts. 706, 848.
    Commissioners’ Decision.
    Appeal from District Court, Taylor County; W. R. Ely, Judge:
    J. B. Mason was convicted of rape, and he appeals.
    Affirmed.
    J. R. Stubblefield, of Eastland, for appellant.
    ‘ A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment confinement in the penitentiary for five years.

Appellant challenges the sufficiency of the evidence. The state’s testimony is substantially as follows: In the year 1926 appellant, his wife, the prosecuting witness, Opal Avery, who was his stepdaughter, and two stepsons, lived together on a farm five miles from the town of Abilene. Opal Avery, the prosecuting witness, was 13 years of age on the 9th day of June, 1926. During the cotton chopping season in the year 1926, appellant, the prosecuting witness, and her two brothers, one twelve years of age, the other ten years of age, had been chopping cotton on an occasion when appellant’s wife was away from home. Appellant and his stepchildren returned to the house about sundown. Shortly after their return to the house appellant sent the boys for the cows. After his stepsons left, appellant, who was at the barn, called prosecutrix, and she went to the barn. There was no one at the house except appellant and his stepdaughter. When she reached the barn, appellant told her that he wanted to play with her, and caught hold of her. After playing with prosecutrix, appellant placed his penis in her private part. Prosecutrix demurred, and threatened to tell her mother. Appellant stated to her that she had better not tell if she knew what was good for her. He then said to her, “Let’s go in the house. I am afraid the boys might catch us out here.” They went into the house, which was about 50 steps from the barn, where appellant placed prosecutrix on the side of a table, pulled her up against him, and had sexual intercourse with her. Both at the barn and at the house the act of penetration caused prose-cutrix pain. Prosecutrix was afraid of appellant, and did not report appellant’s conduct to her mother until shortly before Christmas. After the matter had been reported to the mother of prosecutrix, she took appellant to task for what he had done, and appellant maintained that he had just played with prosecutrix, and had not hurt her. Prosecutrix was examined by a physician in December, 1926, and it was found that her hymen had been completely ruptured.

Testifying in his own behalf, appellant denied that he ever at any time had any improper relations with prosecutrix. On cross-examination, appellant admitted that on the occasion testified to by prosecutrix he had sent his stepsons after the cows, but denied that he placed his hand on prosecutrix while the boys were away.

We are unable to agree with appellant that the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon.

Appellant brings forward several bills of exception wherein he complains of statements made by the private prosecutor in his argument to the jury. Except in one instance, the court instructed the jury not to consider the statements complained of. We are unable to agree with appellant that the statements were of such nature that their effect could not be withdrawn from the minds of the jury by the instruction of the court. Moreover, in view of the fact that'the evidence is sufficient to warrant the conviction, and that appellant received the minimum term, the statements complained of do not constitute reversible, error.

The instance referred to above, in which the court refused to instruct the jury • not to consider , the language complained of by appellant, is disclosed by bill of exception number la, in which it is shown that the private prosecutor used the following language :

“The fact that the doctors say that the little girl’s hymen was ruptured is a circumstance corroborating the testimony of the little girl.”

Appellant excepted to this statement on the ground that it was a misstatement of the law applicable to the facts, and was highly prejudicial. It was in evidence from a doctor that the hymen of prosecutrix had been ruptured, and in our opinion the inference drawn by counsel was legitimate.

Finding no error, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that this court should not permit the judgment to stand under the evidence. We have again reviewed the facts. If we should agree with appellant’s contention, it would be based, not upon the proposition that the evidence is insufficient, but upon the ground that we would assume to say that we do not believe the evidence given by the prosecutrix to be true, for, if believed, a case is made out. Very wisely the jury has been made the exclusive judges of the facts proven and the weight to be given .to the testimony. Article 706, C. C. P. It is true this court has authority to reverse a judgment on the facts as well as the law (article 848, C. C. P.), but this court does not, and should not, assume to exercise the right to reverse on the facts, unless the evidence, when viewed in its strongest light from the standpoint of the state, fails to make guilt reasonably certain. Jolly v. State, 87 Tex. Cr. R. 288, 221 S. W. 279; Taylor v. State, 87 Tex. Cr. R. 330, 221 S. W. 611. The jury having accepted the evidence of prosecutrix as true we find no warrant under the circumstances presented to interfere with its verdict.

Appellant’s motion for rehearing is overruled. 
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