
    RICHARDSON v. STATE.
    (No. 9209.)
    (Court of Criminal Appeals of Texas,
    March 18, 1925.
    Rehearing Denied April 15, 1925.)
    1. Criminal law &wkey;>l 172(2) — That charge treated two confessions as original evidence held not erroneous, though one introduced in rebuttal.
    That court' in its charge treated two confessions as original evidence, and refused to charge that confession introduced in rebuttal could be considered only as impeachment, held not erroneous; there being no distinction between evidence useable to establish guilt, whether introduced in chief or rebuttal.
    2. Criminal law &wkey;>l 119(4) — Alleged improper argument held not presented! for review when not shown not to have been in reply to defendant’s argument. '
    Alleged improper argument of prosecutor in prosecution for rape as not being supported by evidence heldi not presented for review, where there was nothing in bill of exceptions showing that argument was not in reply to that of defendant’s counsel,
    3. Criminal law <&wkey;-l26(2) — Change of venue in prosecution for rape held properly denied.
    Change of venué-in prosecution for rape held properly denied, where evidence failed to show existence of such prejudice against accused or any such dangerous combination that he could not obtain a fair trial in county where trial was had.
    4. Rape <@^59 (3) — Refusal of special charge that defendant could not be convicted on evidence of prosecutrix alone held not -erroneous.
    In prosecution for rape, refusal of special charge, that defendant could not be convicted on evidence of prosecutrix alone without corroboration, held not erroneous, where there was nothing in testimony indicating consent by prosecutrix.
    
      5. Criminal law <&wkey;>II84 — Sentence to life imprisonment in prosecution for rape reformed.
    Sentence of defendant to life imprisonment in prosecution for rape would be reformed in conformity with indeterminate sentence law for some period of not less than five years and not more than life.
    Appeal from District Court, Denton County; G. R. Pearman, Judge.
    ' John Richardson was convicted of rape, and he appeals.
    Reformed and affirmed.
    J. A. Carlisle, of Sherman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTTMORE, J.

Appellant was convicted in the district court of Denton county of rape, and his punishment fixed at confinement in the penitentiary for life.

If the testimony for the state be accepted, appellant by force ravished prosecutrix at her home on the occasion mentioned in the indictment. After his arrest he made written statements corroborating in every way the testimony of the prosecutrix, and admitting that he did have carnal knowledge of her. She said when he attacked her she fainted, and in this he also corroborated her. The facts seem to amply support the conclusion of guilt. Prosecutrix was a white woman; appellant a negro man. As far as the record reveals, they were strangers to each other. Her husband was away from home at work, and she was alone when the crime was committed.

There are six bills of exception in the record. The first reflects an exception taken to a paragraph of the court’s charge, in which the jury are instructed regarding the confession or confessions made by appellant. The gist of said exception is that the court in: said paragraph of the charge treated the two confessions made by appellant as though same were original evidence, when in fact one of them was introduced by the state in its rebuttal testimony. We make no distinction in our practice between evidence usable for the purpose of establishing the guilt of the accused, whether introduced while the state is first putting its case before the jury, or when the state comes to its rebuttal. Either or both statements were usable for the purpose of establishing appellant’s guilt, and it was not the duty of the court to attempt to make any such distinction between them, as indicated in this exception.

Bill No. 2 complains of language used by the state’s attorney in his closing argument, the substance of which was that one of the defenses was that it was a case of consent, another defense that the defendant was not present, and another that, if he was present, the state extorted a confession out of him by threatening to cut. his head off. The objection to this argument as set forth in the bill is that it was not supported by the evidence. Nothing in the bill informs us as a matter of fact that the argument was not in reply to that of appellant’s counsel. The bill shows no error.

By another bill appellant complains of the refusal of the court to give a requested instruction to the effect that the statement made and signed by the defendant while in jail at Denton, and offered by the state in rebuttal, could only be considered by the jury for the purpose of impeaching the defendant, and that they must not consider it as original evidence of his guilt. As above stated by us, this seeks to make a distinction between evidence of statements made by the accused, usable to prove his guilt, which we do not recognize.

Another bill of exceptions complains of the overruling of appellant’s request for a change of venue. This bill sets out the testimony offered in support thereof. We have examined the testimony, and are of opinion that it does not show that there existed against the accused such feeling or prejudice, nor any such dangerous combination' against him, as to render it unlikely that he could obtain a fair trial in Denton county.

Another bill of exceptions complains of a statement made by the state’s attorney in reply to one made by appellant’s attorney. We perceive nothing in the bill rendering it seriously objectionable. No request was made that the court instruct the jury not to consider it.

The remaining bill of exceptions is to the refusal of a special charge seeking to have the jury told that they could not convict upon the evidence of the prosecutrix alone, unless there was other testimony corroborating hers and tending to connect appellant. with the commission of the crime. We find nothing in the testimony suggesting the idea of consent on the part .of prosecutrix, and believe the learned trial judge correctly refused said charge.

Believing that the appellant had received a fair and impartial trial, that the complaints directed at the manner of trial are without support, and that the evidence justifies the verdict, the judgment must be upheld. However, we ■ observe that in sentencing appellant the provisions of our indeterminate sentence law were overlooked, and the penalty therein fixed at confinement in the penitentiary for life will be reformed so that the judgment and sentence will read that his punishment be fixed at confinement in the penitentiary for some period of time not less than five years and not more than life, and as thus reformed the judgment will be affirmed. 
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