
    HATTEN v. STATE.
    (No. 8471.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.
    Rehearing Denied June 27, 1924.) ,
    Rape <&wkey;35(3) — State may show use of force, though prosecution for statutory rape.
    Though prosecution be for statutory rape, state is entitled to show use of force.
    Appeal from District Court, Port Bend County; M. S. Munson, Judge.
    Harry Hatten was convicted of statutory rape, and he 'appeals.
    Affirmed.
    Stevens & Stevens, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMOR.E, J.

Appellant was convicted in the district court of Port Bend county of rape, and his punishment fixed at five years in the penitentiary.

The facts amply' support the verdict. There are four bills of exception in the record, Nos. 1 and 2 complaining of the admission of proof to show that the alleged rape was committed by force, and that the court refused to strike out testimony to that effect, and Nos. 3 and 4 complaining of the testimony of physicians to the inflamed and lacerated condition in which they found the private parts of prosecutrix, after the alleged. rape. Authorities will be found collated by Mr. Branch at page 995 of his Annotated P. C. supporting the proposition that, even though the allegation be of a statutory rape, the state'is entitled to show that the rape was by force. These authorities cover the contention made by appellant in each of the bills of exception and negative the claim of injury or that there was error in the admission of the testimony complained of.

The evidence supporting the judgment and no error appearing, an affirmance will be ordered.

On Motion for Rehearing.

Appellant files a motion for rehearing based almost entirely upon the proposition that the evidence is not sufficient to support the jury’s verdict, and in view of his insistence we have again gone over the facts. The alleged injured female was between 13 and 14 years of age, and she not only testified positively that appellant had intercourse with her,' but is strongly corroborated by her mother and the physicians who examined her shortly thereafter. The suggestion contained in questions of appellant to the witnesses upon the trial, that a cousin of prosecutrix was the author of her condition, seem in no wise supported by the facts. It was in testimony that the cousin was present at the courthouse at the time of the trial, but no effort was made by appellant to use him as a witness or to ascertain from him facts which might support this contention in appellant’s behalf. It is true the parties are negroes, but they appear to give testimony in every way worthy of belief.

The motion for rehearing will be overruled. 
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