
    ABLES v. STATE.
    (No. 10449.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.
    Rehearing Denied March 2, 1927.)
    1. Criminal law &wkey;369 (8) — Admitting prosecu-trix’s testimony of two attempts to have sexual intercourse during same night as offense in question held not error.
    In prosecution for statutory rape, admitting her testimony as to two attempts to have intercourse and other acts of intercourse, during same night when offense in question took place, and in same bed, was not reversible error, as permitting proof of other and extraneous offenses on defendant’s part.
    2. Criminal law <&wkey;l 169(2) — Admitting testimony that on night of alleged rape defendant’s wife and children spent night at witness’ home, and that defendant was not there, was not prejudicial.
    In prosecution for statutory rape, where state’s witnesses had testified without objection and defendant testified on examination in chief relative to his family, permitting state’s witness to testify that on night in question defendant’s wife and two children spent night at witness’ house, and that defendant was not .there, was not prejudicial.
    3. Witnesses <&wkey;>277(4) — Cross-examining defendant as to drinking and possession of intoxicants on night of rape was not error.
    In prosecution for statutory rape, where defendant, in examination in chief, testified to possession and drinking “intoxicants on night in question and testified- to matters which were contradictory to statements by state’s witnesses, permitting state to show, on cross-examination of defendant, effect of such liquor on his mind as affecting his testimony was not error.
    4. Criminal law &wkey;>695 (6)— Objection going to all of certain line of-evidence, some of which was admissible, held to show no error.
    In prosecution for statutory rape, objection going to all of certain line of evidence, on cross-examination of defendant as to possession and use of intoxicants on night in question, some of which was admissible, showed no error.
    5. Criminal law <&wkey;1186(4) — Error, if any, in court’s use of “unchaste character,” instead of “chaste character,” in reference to prosecu-trix in rape case, held not reversible (Code Cr. Proc. 1925, art. 666).
    In prosecution for statutory rape, error, if any, in charge because of use by court of words “unchaste character,” instead of “chaste character,” viewing charge as whole, was not reversible, in view of Code Cr. Proc. 1925, art. 666.
    6. Rape <&wkey;64 — 20-year penitentiary sentence for statutory rape should be reformed to not less than 5 nor more than 20 years (Code Cr. Proc. 1925, art. 847).
    On conviction of statutory rape, penitentiary sentence of 20 years was error, and on appeal should be corrected to read not less than 5 nor more than 20 years, under Code Or. Proc. 1925, art 847.
    On Motion for Rehearing.
    7. Criminal law <&wkey;>llll(3) — Statement of facts, referred to by qualification of bill of exceptions, is considered in connection with bill.
    On appeal in criminal case, where qualification on bill of exception refers to statement of facts, such statement is considered in connection with recitals of bill.
    8. Criminal law <3=>l 111 (5) — Bill of exceptions controls in contradiction between it and statement of facts arising on certificate in bill that certain facts were proved.
    On appeal from conviction for statutory rape, in case of contradiction between bill of exceptions and statement of facts not arising from positive conflict in statements,'but by certificate in bill that other acts of intercourse during same night, as part of same transaction, were proved, when statement of facts was silent as to subsequent acts of intercourse, bill of exceptions controls.
    Commissioners’ Decision.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    John Abies was convicted of statutory rape, and he appeals.
    Modified and affirmed.
    Jas. W. Bassett, of Amarillo, and Ramey & Davidson, of Sulphur Springs, for- appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Byles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted of ’ rape in the district court of Hunt county and his punishment assessed at 20 years in the penitentiary.

The indictment charged the appellant with unlawfully having carnal knowledge of Ava Coomer, she being under the age of 18 years. Briefly stated, the record shows that the appellant, the prosecutrix, Jesse Hodges and Sadie Steger, about the 16th day of January, 1926, went in appellant’s ear from Quinlan, in Hunt county, to tlie town of Greenville, where they secured rooms for the night, and that the appellant and prosecutrix slept in the same bed in one room, while Hodges and Sadie Steger occupied another room. The undisputed testimony shows that the appellant was a married man about 37 years of age, and that the prosecutrix at said time was about 16 years of age. The appellant admitted hiving intercourse with the prosecutrix, and it was not controverted but that same was with her consent. The appellant attempted to prove that the prosecutrix was of previous unchaste character by showing her familiarity with other boys, in permitting them to hug and kiss her, and he testified in addition thereto that she and Sadie Steger, before retiring on ,the night of the alleged offense, told him and Hodges of previous acts of intercourse with other boys, which was denied by the prosecutrix and Sadie Steger.

The record contains 5 bills of exception. In bill of exception No. 1 the appellant complains of the action of the court in permitting the state to show by the prosecutrix that on the night in question the appellant had more than one act of intercourse with her, the appellant contending that this amounted to proof of other and extraneous offenses on his part. The bill was approved, and accepted by the appellant, with the qualification that all the subsequent acts of intercourse- were at the same place and on the same night, as shown by the statement of facts. The record discloses that the prosecutrix admitted that she slept with the appellant that night, and testified that the appellant made two unsuccessful attempts to have intercourse with her before succeeding on the third attempt. After a careful examination of this bill and the record, we are unable to reach the conclusion that the testimony of the prosecutrix as to the appellant’s attempts to have intercourse with her, and having intercourse with her thereafter, was of such a harmful nature as to require a reversal of this case, especially in view of the fact that all of said acts and attempted acts took place during the same night and in the same bed.

In bill of exception No. 2 complaint is made to the action of the court in permitting the witness, John Knighton to testify that on the night of the commission of the alleged offense the wife of the appellant and his two children spent the night in the home of the witness, and that the appellant was not there during said night. The appellant contends that said testimony was prejudicial' in that it showed the appellant to be a married man ■with a family. We are of the opinion that the admission of this testimony was not of such a harmful or prejudicial nature as to require a reversal of the case, for the reason that the state’s witnesses, Mrs. Nellie Coomer, the prosecutrix, and Miss Sadie Steger, had testified, without objection from the appellant, relative to the appellant’s wife and family, and, in addition, the appellant, on his examination in chief, testified that he had been married about 15 years and had a wife and two children. Under this state of the record, we fail to see how the testimony of the witness Knighton could have had such harmful effect as to prejudice the jury materially against the appellant in this instance.

In bill of exception No. 3 the appellant complains of the action of the court in permitting the state, on cross-examination, to prove by him:

“That it was a fact that, prior to the commission of the alleged offense, he had drunk what was known as ‘force’; that he had drunk it a good many times and had bought it to drink; that he had used it as a substitute for whisky when he could not get whisky, and that ‘force’ was intoxicating, had the same effect as whisky, and that he had received and transported it as an intoxicating liquor for beverage purposes.”

Tbe appellant contends that this testimony was highly prejudicial, and was an attempt to show the commission of other and extraneous offenses not connected with the offense for which he was on trial. This bill, as presented, shows no error. The appellant, on his examination in chief, testified to having about a pint bottle of “fpree” while on the trip from Quinlan, to Greenville, and admitted drinkipg some of it. himself and passing it to Jesse Hodges on the back seat. The prosecutrix and Sadie Steger also testified to drinking some of the “force” on said trip and to feeling the effects thereof, all of which was without objection. The appellant also having testified to matters which were contradictory to statements made by the girls, we think it was permissible for the state to show, on cross-examination, if it could, the effect of said “force” on the appellant’s mind in order to throw the proper light upon his mental condition and the weight to be given to his testimony. That much of the testimony was clearly admissible. Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465.

A portion of the testimony objected to in the bill being clearly admissible, and the objection urged in the bill going to all of said evidence generally, and not to any specific part thereof, the same is in contravention of the holding of this court in such matters and,, as presented, shows no error. Clark v. State, 90 Tex. Cr. R. 613, 237 S. W. 260; Espalin v. State, 90 Tex. Cr. R. 625, 237 S. W. 274; Scogin v. State, 100 Tex. Cr. R. 389, 273 S. W. 575; Nugent v. State, 101 Tex. Cr. R. 86, 273-S. W. 598.

In bills 4 and 5 complaint is made to the-‘court’s charge because, it is contended, same placed an undue burden upon the appellant to show that the prosecutrix was of unchaste character at the time of the alleged offense. As we understand this objection, the complaint urged to said charge is, in. its last analysis, to the use by the court of the words* “unchaste character” instead of “chaste character.” Taking the charge as a whole, we do not think the misuse of the word “unchaste” was calculated to mislead the jury and was of such harmful character as to require this court to reverse the case, and, under article 666, O. O. P. 1925, we overrule appellant’s contention.

The court failed to apply the Indeterminate Sentence Law (article 775, C. C. P. 1925) in this case. Under article 847, O. O. P. 1925, said sentence is here and now reformed and corrected to read not less than 5 nor more than 20 years in the penitentiary, instead of being for 20 years.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court, as reformed, should be affirmed, and it is accordingly so ordered.

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 challenges the disposition of his bill of exception No. 1 on the ground that we were controlled by the statement of facts rather than the bill. The bill recites that:

“The state relied for the conviction upon an act of intercourse testified to by the said Ava Coomer, as having occurred on or about the 16th day of January, 1926, at a rooming house ■in the city of Greenville, Hunt county, Tex., the same being the first act of intercourse that said prosecutrix testified as having occurred. The defendant admitted the act of intercourse and defended upon the ground that, at the time of said act of intercourse upon which the state relied for a conviction, the said Ava Coomer was not a chaste female and was over the age of 15 years, which was the only issue in the case. Upon direct examination, the said witness Ava Coomer testified to the act of intercourse as having taken place in the city of Greenville, on or about the date alleged in the bill of indictment, and after having so testified, and upon which act the state relied for the conviction, the said witness Ava Coomer was permitted, over the objections of the defendant to testify to other acts of intercourse as having taken place subsequent to and after the act upon which the state relied for a conviction; and which subsequent acts the said witness testified to be three in number, and at different times and places, and to the introduction of said testimony relating to the subsequent acts, as well as the interrogatories eliciting said testimony, the defendant objected. * * * ”

The bill was approved with the qualification that:

“All subsequent acts of intercourse were at the same place and on the same night, as shown by the statement of facts.”

It is manifestly impossible for this court in any ease to intelligently appraise a complaint based on the admission or rejection of testimony without reference to the facts which were in evidence, for it is only in the light of those facts that the ruling complained of can be estimated. Where the qualification on a bill of exception refers to the statement of facts, this court has always gone to the latter record and considered what is there found in connection with the recitals in the bill. Haines v. State, 9 Tex. App. 410; Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534; Gallaher v. State, 40 Tex. Cr. R. 296, 50 S. W. 388; Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 219.

The learned trial judge’s explanation to the bill under consideration practically avers that the “subsequent acts” were proved, but that they occurred on the same night and at the same place where the first took place, and apparently refers to the statement of facts for verification of his explanation. But when we examine the statement of facts it shows that prosecutrix only testified that appellant made two unsuccessful efforts to have intercourse with her before succeeding at the third attempt. Nothing is found relative to any subsequent act of intercourse. Here, then, we find an instance of contradiction between the bill and statement of facts, not arising from positive conflicting statements, but by certificate in the bill that certain facts were proved, when the statement of facts is silent on the point. It is the exact question found in Elkins v. State, 101 Tex. Cr. R. 377, 276 S. W. 291, where it was held that the bill would control. See, also, Martin v. State (No. 10,044, decided on rehearing February 23, 1927) 292 S. W. —. However, taking the recitals In the bill in connection with the judge’s qualification that the subsequent acts of intercourse occurred on the same night while prosecutrix and appellant occupied the same bed, we are of opinion it does not present proof of that character of independent acts of intercourse which calls for a reversal. If more than one act took place they were incidents of the night’s association, and, in a sense, were res gestas of the relations between prosecutrix and appellant on that occasion.

The other questions presented in appellant’s motion are not thought to call for discussion.

The motion for rehearing Is overruled. 
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