
    WILCOXSON v. STATE.
    (No. 10315.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.
    Rehearing Withdrawn Jan. 12, 1927.)
    I. Criminal law @=o!092(6) — Bill of exception to changing venue, taken just before trial on merits, cannot be considered (Vernon’s Ann. Code Cr. Proc. 1925, art. 568).
    Under Vernon’s Ann. Code Cr. Proc. 1925, ■art. 568, requiring bill of exception to order granting or refusing change of venue at term of court in which order was made, Court of •Criminal Appeals cannot consider bill of exception taken to action' of court in changing venue on its own motion which was not taken •and filed until just before trial on merits.
    •2. Criminal law @=>598(5) — Defendant failing to show he had located, or could locate, witnesses held not to show diligence authorizing continuance.
    Defendant, in support of motion for con-■tinuanee for absence of witnesses, held not to have shown necessary diligence, where process was not issued until two weeks before trial, ■and there was no showing that witnesses had ■ever been located, or that defendant would be •able to locate them.
    -3. Witnesses @=>282¡/2 — Refusal to permit cross-examination of prosecuting witness requiring her to repeat testimony relative to alleged rape held proper.
    In prosecution for rape, refusal to permit cross-examination of prosecuting witness, re■quiring her to repeat testimony in reference to what was said and done at time of alleged rape, held proper.
    •4. Rape <@=3S(I) — Refusal to permit defendant to show doctor was not paid for his services when prosecuting witness was born held proper.
    In prosecution for rape, court properly refused to permit defendant to show that doctor had not been paid for his services on prosecuting witness’ mother at time witness was ■born.
    ■5. Witnesses @==>345(2) — State held properly permitted to show conviction of defendant’s witness of assault with intent to rape within 6 /2 years.
    In prosecution for rape, state was properly permitted to show that defendant’s witness had b,een convicted of assault with intent to rape ■Within 6% years prior to instant trial.
    6. Rape @=>40(5) — Court properly refused to permit proof of general reputation of pros-ecutrix in rape for chastity, where she was less than 15 years of age (Vernon’s Ann. Pen. Code 1925, art. 1183).
    In prosecution for rape, when prosecutrix was under 15 years of age, refusal to permit defendant to attack general reputation of pros-ecutrix for chastity held not erroneous, since Vernon’s Ann. Pen. Code 1925, art. 1183, permitting proof of unchastity, and requiring confinement to specific acts, applies only when prosecutrix is between 15 and 18 years of age.
    7. Criminal lav; @=>829(18) — Special charge on reasonable doubt held properly refused, in view of general charge thereon.
    In prosecution for rape, refusal of special charge relative to reasonable doubt held not erroneous, in view of general charge thereon.
    8. Criminal law @=>l 173(2) — Under evidence showing penetration in rape, refusal of charge defining penetration held not reversible error.
    In view of evidence showing penetration in prosecution for rape, refusal of charge defining penetration was not reversible error, particularly in view of general charge defining it.
    9. Criminal law @=>1111(3) — Refusal of special charge on acquittal, if prosecutrix was not of previous chaste character, held not erroneous, in view of qualification that issue was not raised.
    In prosecution for rape, refusal of special charge authorizing acquittal if prosecuting witness was between 15 and 18 years of age, and not of previous chaste character, held not erroneous, in view of qualification stating such issue was not raised by testimony.
    Commissioners’ Deeisipn.
    Appeal from District Court, Baylor County ; J. H. Milam, Judge.
    Paddy Wilcoxson was convicted of rape, and be appeals.
    Affirmed.
    Floyd Harry, of Farmersville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. Stat.e’s Atty., of Groesbeck, for tbe State.
   BAKER, J.

Tbe appellant was convicted in tbe district court of Baylor county for tbe offense of rape, and bis punishment assessed, at 5 years in tbe penitentiary.

Tbe appellant was‘"indicted in tbe district court of Knox county on tbe 21st day of September, 1925, and tbe court thereafter, on bis own motion, changed tbe venue of this case to Baylor county. Tbe indictment charges that “on or about tbe 30th day of August, 1925, * * * Paddy Wilcoxson did then and. there unlawfully have carnal knowledge of Odessa Thomas, a female who was then and there under the age of 18 years, and who was not then and there tbe wife of tbe said Paddy Wilcoxson.” It was the contention of tbe state, and evidence was introduced in support thereof, that the prosecutrix and appellant, together with Myrtle Lanningham and Pete Williams, went for an automobile ride on the night of August 20, 1925; that the appellant took prosecutrix out of said car and up the road a short distance from where the other two occupants were, laid her down in the road, and had intercourse with her; and that at said time she was under the age of 15 years. The prosecutrix and her mother testified that she (prosecutrix) was 15 years old on the 6th day ’of the following November, 1925, after the commission of the alleged offense. The prosecutrix testified for the state that the appellant laid her down across the road, and had intercourse with her, while she was telling him that he was ruining her and asking him to stop, which he refused to do until he had accomplished the act; that they then returned to the automobile, and joined the other parties and continued the ride; and that she never told anybody that the appellant had intercourse with her until about three or four weeks thereafter on account of being ashamed of it. The appellant took the stand, and testified in his own behalf to the effect that he did not have intercourse with the prosecutrix, or attempt to have intercourse with her, at the time alleged in the indictment or at any other time. The appellant also defended upon the ground that the prosecutrix was over 18 years of age, and introduced evidence in support thereof.

The appellant brings forward for review 41 bills of exception. In bill No. 1 complaint is made to the action of the court in changing the venue, on his own motion, from Knox to Baylor county. The record discloses that this bill of exception was not taken at the time the court made the order changing the venue in Knox county, but was taken and filed in the district court of Baylor county just before appellant announced ready on the merits. Article 568, Vernon’s 1925 O. O. P., explicitly states that the order granting or refusing a change of venue shall not be revised upon appeal, unless the bill of exception is prepared, proved, and filed at the term of court at which said prder is made. The article, supra, and the authorities cited thereunder prohibit this court from considering said bill. -

In bill of exception No. 2 the appellant complains of the refusal of the court to grant him a continuance for want of the testimony of the witness, Myrtle Lanningham, and that of her father and mother. The motion for continuance shows that the appellant was arrested on the 19th of September, 1925, placed in jail, and remained there until the 10th of October, 1925, at which time he made bond and was released. The record discloses that the transcript on change of venue was filed in the district court of Baylor county on the 23d day of September, 1925, and that, in making the order changing the venue, the court ordered the appellant to be immediately transferred from the jail in Knox county to the jail in Baylor county; that there was no effort made to issue process for said witnesses until January 4, 1926; that the trial took place on January 19, 1926, and the motion for new trial was overruled on January 29, 1926; and that up to the time of overruling the motion for new trial there wasi nothing to show that the appellant had ever located said witnesses, and no reasonable showing that he would be able to locate said witnesses or have the testimony at any future-term of the court. After a careful examination of this bill, we are of the opinion that the appellant has failed to show such diligence as is required by law to entitle him to a continuance.

In several bills of exception the appellant complains of the refusal of the court to permit him, in cross-examining the prosecutrix, to have her repeat her testimony as to what took place during the trip in-the automobile, and especially with reference to what she said and did relative to the act of intercourse in question. These bills, as presented,, show no error.

Bill of exception 18 complains of the refusal of the court to permit the appellant to show that Dr. Westbrook, who waited upon the prosecutrix’s mother at the time of prosecutrix’s birth, had not been paid for his services. There is no merit in this contention.

Bills 22, 23, 24, 25, 26, and 27 complain ,of the action of the court in permitting the state, on cross-examination of the- appellant’s witness, Pete Williams, to show that he had been convicted of assault with intent to rape within 6 y2 years prior to the instant trial.' These bills, as presented and qualified by the court, show no error.

Bill 34 complains of the refusal of the court to permit the appellant to prove that the general reputation of the prosecutrix for chastity was bad. There was no error in the refusal of the court to admit this testimony. Had the evidence shown that the prosecutrix was between 15 and 18 years of age at the time of the alleged offense, then, under article 11S3, Vernon’s 1925 P. C., it would have been improper to show that she was of unchaste character by proof of general reputation. Such testimony would have to be confined to specific acts. Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 991; McWhorter v. State, 93 Tex. Cr. R. 385, 247 S. W. 1089.

The appellant complains of the refusal' of the court to give his special charge to the effect that the jury must believe beyond a reasonable doubt that the appellant’s male organ penetrated the female organ of the prosecutrix, and that at said time she was under the age of 18 years, and, unless they so believed, to acquit him. There was no-error in refusing this charge. The court, in his general charge, charged the jury that. rape was the carnal knowledge of a female -under the age of 18 years, with or without her consent, and, if the jury found from the ■evidence, or had a reasonable doubt, that at the time of the alleged offense the prosecu-trix was 18 years of age or more, to acquit the appellant. The court also charged the jury that .they must believe beyond a reasonable doubt that the appellant had carnal ■knowledge of the prosecutrix, a female under the age of 18 years, before they could convict him.

The appellant complains of the refusal of the court to give to the jury his special charge No. 4 defining penetration, and contends that the failure of the court to give ■said charge was reversible error, and that the evidence of the state failed to show penetration. There is no merit in this contention. The prosecutrix testified that the appellant had intercourse with her, and the appellant denied such intercourse, and any attempt to have intercourse with her, and in our opinion the evidence did not call for such a charge. There could be no intercourse without penetration. The court, in his general charge, defined rape, and instructed the jury that, unless they believed beyond a reasonable doubt that the appellant had unlawful camal intercourse with the prosecutrix, and that she was under the age of 18, to acquit him. We think this was sufficient, un■Üer the facts of this case.

The appellant complains of the refusal of the court to give his special charge No. 3 to the effect that, if the prosecutrix was over 15 years of age and under 18 years of age .at .the time of the alleged offense, and if she was not of previous chaste character at the time of said act of intercourse, to acquit the appellant. The court qualifies this bill by stating that in his opinion this issue was not raised by the testimony. We are of the opinion, after a careful examination of the record, that there was no evidence raising such issue.

We have carefully examined all of appellant’s bills of exception and the entire record, and fail to find any reversible error therein. We are therefore of the opinion that the judgment of the trial court 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 Rehearing.

BAKER, J.

The appellant having filed in writing, duly verified by his affidavit, a request that his motion for rehearing heretofore filed be dismissed, it is ordered that the request be granted, and that the motion for rehearing be dismissed, and that the man-. date of this court be at once issued upon the original judgment affirming the conviction herein.

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; 
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