
    ULMER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied Dec. 3, 1913.)
    1. Rape (§§ 43, 48)—Admissibility of Evidence-Complaint.
    In a prosecution for rape, recent complaint by the prosecutrix, her state and appearance, marks of violence, and the condition of her dress shortly after the alleged occurrence may be proved as original testimony.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 62, 65, 67-69; Dec. Dig. §§ 43, 48.]
    2. Rape (§ 4S)—Admissibility of Evidence —Accusation.
    In a prosecution for rape on his daughter, a girl under 15 years of age, the fact that she accused defendant would not be admissible as original' testimony.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 67-69; Dec. Dig. § 48.]
    3. Witnesses (§ 277)—Cross-Examination —Matter Brought Out on Direct.
    In a prosecution for rape, where defendant went into the matter as to whether prosecutrix had accused him, cross-examination as to that fact was proper.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§> 925, 979-983; Dec. Dig. § 277.]
    4. Criminal Law (§ 721½)—Trial—Argu-ment.
    In a prosecution for rape of a daughter a remark of the prosecuting officer, that: “The mother did not testify; the law seals her lips— he is her husband. I could have proven what she told her, but it is inadmissible evidence, and the law would not permit me”—was improper.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721½.]
    5. Criminal Law (§ 726)—Argument) of Counsel—Retaliatory Statements.
    Improper argument of prosecuting attorney is not reversible error, where it was in reply to and admitted because of remarks by defendant’s counsel.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    6. Criminal Law (§ 829)—Requested Instructions—Given Instructions.
    In a prosecution for rape, where the court charged that the state has elected to rely for a conviction upon a particular act of carnal knowledge, and that any other act could not be considered except for the light it might throw upon the act charged, specially requested instructions on that point were properly refused.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    
      7. Criminal Law (§ 829) — Requested Instructions — “Penetration.”
    Where the court instructed that in cases of rape, “penetration” must be proved beyond a reasonable doubt, by which term was meant that the sexual organ of the male entered and penetrated the sexual organ of the female, there was no error in refusing the special charge re-guested on the word “penetration.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829
    
    For other definitions, see Words and Phrases, yol. 6, p. 5279.]
    8. Rape (§ 59) — Elements—;Force.
    In a case of rape on a girl under 15 years of age, it was not necessary to define “force,” and charge that the rape must be accomplished by force.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    9. Criminal Law (§ 814) — Instructions— Application to Evidence,
    In a prosecution for rape where if the girl was penetrated it was shown to have been by defendant’s male organ, and where the defendant’s testimony was that there was no attempt to rape and no penetration, a requested instruction that if some part of defendant’s body penetrated the prosecutrix, yet if they did not believe beyond a reasonable doubt it was the private male organ of defendant, to acquit was inapplicable to the evidence..
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    10. Criminal Law (§ 678) — Evidence—Election.
    When a father, or other person standing in such relation to a girl under 15, is prosecuted for rape on her, all acts of intercourse are admissible in evidence, but the state must elect upon which act it will seek a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    11. Criminal Law (§ 957) — Impeachment of Verdict — Affidavit of Juror.
    Jurors will not be allowed to impeach their verdict by alleging that different members of the jury misunderstood the testimony of a witness.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    W. P. Ulmer was convicted of rape, and he appeals.
    Affirmed.
    W. P. Ulmer, pro se. C. B. 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
    
   HARPER, J.

Appellant was prosecuted arid convicted of rape on his daughter, Lucile Ulmer, a girl under 15 years of age.

There are but two bills of exceptions in the record in regard to the introduction of testimony. Neither one of the bills are complete enough to bring the questions before us for review, but if we could consider them, as qualified and approved by the court, they would present no error. The first bill complains that while Mrs. Myrtle Plunkett was testifying she was asked if Lucile complained to her of anything, and the witness answered that Lucile “complained that she was hurting.” The record discloses that this occurred a short time after the alleged Tape, and this is the first person she met when her father was not present, and there was no error in admitting the testimony. In Pefferling v. State, 40 Tex. 492, it was said:. “It has been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress shortly after the alleged occurrence may be proved as original testimony.” This rule was reiterated by this court in Sentell v. State, 34 Tex. Cr. R. 260, 30 S. W. 226, and other cases.

The next bill complains that Mrs. Plunkett was asked the following question, “Did she tell you of any mistreatment that had been done toward her by her father?” which question she answered, “Yes, sir.” She was not permitted to detail what her niece, Lucile, had told her, but the fact that Lucile accused her father as the person who had raped her would not be admissible as original testimony. But in approving the bill, the court states appellant had gone into this matter first in the cross-examination of the witnesses Lucile and Mrs. Plunkett, and, if so, then it would not be error to permit the witness to answer the question.

Appellant also complains that the prosecuting officer made use of the following language in his argument: “The mother did not testify; the law seals her lips — he is her husband. I could have proven what she (meaning Lucile Ulmer) told her, but it is inadmissible evidence, and the law would not permit me.” This was improper, but the court, in approving the bill, states the argument was in reply to argument of appellant’s counsel, and admitted because of such remarks. Under such circumstances no reversible error is presented.

There was no error in refusing to give the peremptory instruction requested. The testimony offered in' behalf of the state makes a case of rape.

Several acts of intercourse were testified to by the daughter of appellant, when appellant moved that the state be required to elect on which act of intercourse it would seek a conviction. The state elected to ask for a conviction on the alleged act of intercourse that the girl said took place in the storm cellar on a date named. The court instructed the jury: “You are further charged that the state has elected to rely for a conviction in this case upon the act of carnal knowledge, if any, between the defendant and Lucile Ulmer committed in the storm cellar, if it was. Therefore you cannot consider any other act, if any, of sexual intercourse, except for the light, if any, it may throw upon the act charged.” The court, in his charge, having given this instruction, it was not necessary to give the special instructions requested in regard to this matter.

The court also instructed the jury: “In eases of rape penetration must be proved beyond a reasonable doubt. By the term ‘penetration’ is meant the sexual organ of the male entered and penetrated the sexual organ of the female.” Consequently there was no error in refusing the special charge requested on the word “penetration.”

This being a case of rape on a girl under 15 years of age, it was not necessary to define “force” and charge that the rape must be accomplished by force, and the court correctly refused the charges presenting this issue.

Appellant requested the court to charge the jury that although they believed “that some part of defendant’s body penetrated the prosecutrix, yet, if they did not believe, beyond a reasonable doubt, it was the private male organ of appellant, to acquit.” There was no evidence calling for such a charge. If the girl was penetrated it is shown by all the testimony it was so done by appellant’s male organ. This is the state’s testimony, and the defendant’s testimony is that there was no attempt to rape, and no penetration.

We have, in several opinions, held that when a father, or other person standing in such relation to a girl, is prosecuted for rape on her, she being under 15 years of age, all such acts are admissible in testimony, but the state should be required to elect upon which act it would seek a conviction. This was done in this case, and there was no error in admitting the testimony.

The ground in the motion for a new trial that alleges that different members of the jury misunderstood the testimony of Dr. Milner on the trial cannot be considered. Jurors will not be allowed to impeach their verdict in this manner.

The judgment is affirmed.  