
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 4, 1913.)
    1. CRIMINAL Daw (§ 614) — Continuance-Absence of Counsel.
    Where accused had been granted one continuance because of the absence of witnesses, and one of his attorneys was present at the trial and ably conducted his defense, the court did not err in denying a continuance because of the absence of another of his attorneys.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    2. Rape (§ 43) — Evidence—Remoteness.
    Where the mother of a girl, alleged to have been raped, wrote the father and waited for him to return home before having the girl examined by the family physician about ten days after the offense, the physician’s testimony as to the fact of penetration was not so remote as to be inadmissible. ,
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 66; Dec. Dig. § 43.]
    3. Rape (§ 43) — Evidence—Admissibility.
    On a trial for rape on a girl under 15 years of age, the testimony of the girl’s mother that she examined her daughter’s bloomers and found them cut and also found “white stuff like the passage of a man” on them was competent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    4. Criminal Daw (§ 448) — Evidence—Conclusion.
    On a trial for rape on a girl under 15 years of age, the testimony of the girl’s mother that she found “the passage from him” on her daughter’s bloomers was incompetent.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    5. Criminal Daw (§ 1169) — Appeal—Harmless Error.
    The admission of such testimony was harmless, where it was manifest from the whole of the mother’s testimony that she did not intend to lead the jury to believe that she knew who put the stain on the drawers.
    [Ed. Note. — For ’Other cases, see Criminal Daw, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Will Thompson was convicted of rape on a girl under 15 years of age, and he appeals.
    Affirmed.
    W. A. Anderson, of San Angelo, and D. W. Sandusky, of Colorado, Tex., for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of rape on a girl under 15 years of age and his punishment assessed at eighteen years’ confinement in -the state penitentiary.

Appellant, when the case was called for trial, filed a motion to postpone or continue the case on account of the absence of one of his attorneys. This was the second application, the case having been continued at a prior term on his motion on account of absence of certain witnesses. As one of appellant’s’attorneys, was present and, so far as we are able to judge from this record, ably conducted his defense, the court did not err in overruling the application.

The father of the girl alleged to have been raped was absent from home at the date of the offense. Her mother wrote for him, and on his return home, as soon as he could get his family physician, he had the girl examined, and the physician positively testifies to penetration. While this was some ten days after the alleged offense, it was not so remote as to render it inadmissible.

The mother of Velma Ash testified to examining the bloomers of her daughter and found them cut. This was admissible and the court did not err in so holding. However, the bill states she testified she “found the passage from him on them.” It was also permissible for her to state that she found “white stuff like the passage from a man on the bloomers,” and this is what the court states he understood the witness to testify; but, in approving the bill, he approves it as prepared by appellant’s counsel, and this would have her to say she “found the passage from Mm on them.” It was improper to permit her to so testify, but her whole testimony shows she was not present at the time the offense was committed, did not find the passage on the drawers until next morning, and we do not think it such error as will necessitate the reversal of the case under the evidence adduced on this trial. Dater on she states when she found this stain on the bloomers “it had dried,” and makes it manifest that she did not intend to lead the jury to believe that she knew who put the stain on the drawers, and this inadvertent expression in the use of the words “from him” in connection therewith, while erroneous, adds no strength to the case for the state, and under such circumstances such error has been held to be harmless error.

The testimony is such that it unquestionably supports the verdict and finding of the jury, and the heavy penalty assessed was doubtless occasioned by the fact that appellant was a mature man, a seeming friend to the family, one who had been the guest of the father; one who “dropped in” at all hours of the day, and then when the father was called from home took advantage of this occasion to attempt the ruin of his daughter. This doubtless was deemed by them as so reprehensible as to indicate that he was de^ void of those instincts which go to make good citizenship.

The judgment is affirmed.  