
    BONEY v. STATE.
    (No. 11651.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Rehearing Denied June 20, 1928.
    1. Criminal law <&wkey;369(8) — Evidence as to another act with another girP held admissible in rape prosecution.
    In rape prosecution, evidence as to another act with another girl held admissible to show intimacy, familiarity, and' association with prosecuting witness.
    2. Criminal law <&wkey;369(8)— Evidence of act with another girl is inadmissible as original evidence in rape prosecution.
    In rape prosecution, evidence of act with another girl is inadmissible as original evidence.
    3. Witnesses <&wkey;>337(4) — In rape prosecution, evidence of act with another girl held inadmissible as impeaching evidence.
    In rape prosecution, evidence of act with another girl held inadmissible as impeaching evidence.
    4. Criminal Paw <&wkey;1134(6) — Admission of evidence held not ground for reversal, though admitted upon wrong theory.
    In criminal prosecution; the admission of evidence, which was admissible because inseparable from admissible evidence, held not ground for reversal, though admitted on the wrong theory.
    5. Criminal law <&wkey;l 169(2) — Erroneous admission of testimony is harmless, if same fact is proved by other testimony not objected to.
    The erroneous admission of testimony is not cause for reversal, if same fact is proven by other testimony not objected to.
    6. Criminal law &wkey;>l 137(5) — Defendant cannot complain of admission of evidence similar to that elicited by himself on cross-examination.
    Defendant cannot complain on appeal of the admission of evidence, where he himself had brought out on cross-examination testimony of substantially the same character.
    7. Criminal law &wkey;»1037(2) — Argument held not ground for reversal, in absence of objection and request for instruction to disregard.
    Where argument of counsel was such that appellate court cannot say that written instruction from court to disregard would not have cured error, the argument is not ground for reversal, in absence of objection thereto and request for written instructions to disregard it.
    8. Rape &wkey;?5l (I) — Evidence held to sustain conviction.
    In rape prosecution, evidence held to sustain conviction.
    Commissioners’ Decision.
    Appeal from District Court, San Saba County; J. H. McLean, Judge.
    Charlie Boney was convicted of rape, and he appeals.
    Affirmed.
    N. C. Walker and E. L. Rector, both of San Saba, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, rape; penalty, 25 years’ confinement in the penitentiary.

The alleged injured female was the 11 year old daughter of appellant. The offense is alleged to have happened on the 26th day of September, 1927.

Appellant presents the question by bill of exception No. 8 of error on the part of the court in permitting the state to prove by the witness Otho Wells that on the night of the 18th of June, 1927, when she was staying all night with prosecuting witness at appellant’s home, that appellant came in the nighttime and got in bed with her and the prosecuting witness. The court explains that this was admitted as impeaching- evidence of the appellant; he having denied the transaction. The evidence was not admissible by sheer force of the fact that it contradicted appellant. It was admitted upon the wrong theory, but we think was in fact admissible, because it was an act showing intimacy, famil-iaritj', and association with prosecuting witness falling short of an act of intercourse, which character of testimony has been held to be admissible in cases of this kind. Osborne v. State, 106 Tex. Cr. R. 310, 202 S. W. 240; Branch’s P. C., subd. 4, § 1788. Such an act with the little Wells girl by appellant, standing alone, was, we think, inadmissible either as original or impeaching evidence, but it was inseparable from the admissible part, which related to his conduct with prosecuting witness, and there was no error in admitting same. This also disposes of appellant’s bill of exception No. 5, complaining of the action of the court in compelling appellant to answer whether or not such a transaction happened.

Bills' Nos. 2 and 0 relate to a similar act of appellant with the little girl, Glow Whitt, and to conversations by prosecutrix with said witness. These matters were first gone into by appellant in his cross-examination of prosecuting witness Mozelle Boney, and were substantially testified to on cross-examination of Mozelle Boney at the instance of appellant.. It is a well-settled-rule in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other, testimony not objected to. Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Walker v. State, 17 Tex. App. 16; Johnson v. State (Tex. Cr. App.) 26 S. W. 504; Stephens v. State (Tex. Cr. App.) 26 S. W. 728; Logan v. State, 17 Tex. App. 50; West v. State, 2 Tex. App. 460; Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991. See, also, recent cases of Bonilla v. State (No. 11346) 2 S. W. (2d) 248, and Bryant v. State (No. 10816) 2 S. W. (2d) S46, not yet officially reported. The appellant is in no position to complain of the admission of testimony where the record shows that he himself had theretofore brought out on cross-examination testimony of substantially the same character.

Objection was made to the argument of the district attorney, but no objection is shown to have been made at the time of said argument and no written instructions requested to disregard same. We do not regard the language as of that nature about which it could be said that a written instruction from the court to disregard would not cure, and, under these circumstances, no error is presented.

The earnest contention is made that the evidence is insufficient. We hardly think the importance of the question justifies a recital of the vulgar and revolting details contained in the record. The prosecuting witness testified to an act of intercourse. She was corroborated in some degree by Dr. Taylor and by two other little girls who had stayed all night with her. If this testimony is to be believed, and we would not feel justified in saying it was unworthy of belief, it shows that a father was guilty of a most abominable and atrocious crime upon his motherless and helpless child. Under their testimony, he has a merciful jury to thank that his penalty was' not larger.

The judgment is affirmed.

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.

DATTIMORE, J.

We have carefully examined the able motion for rehearing in this case. We do not think the prosecutrix unsupported in her testimony. We would not commit this court to the proposition that it would not sustain a conviction upon the uncorroborated testimony of a 12 year old girl, in a case in which her testimony appeared to be reasonable and was not defeated or seriously impaired in its force by other testimony in the case. We are unable to argee with the contention made by appellant that the testimony of the girl in this case was unreasonable. She testified to several efforts on the part of her father to have carnal intercourse with her, finally attaining success. No reflection is cast upon her by any testimony from any other source than that which might be said to arise from her own examination at the hands of appellant’s counsel.

We have weighed the complaint at the reception of the testimony of the other little girls as to the familiarity indulged in by appellant. We think these contentions properly disposed of in our original opinion.

The motion for rehearing will be overruled. 
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