
    HOOPER et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Witnesses (§ 287) — Redirect Examination.
    Where, in a prosecution for assault to rape, a witness for the state testified on cross-examination that he had not promptly reported the ol't'ense to the officers after he saw its commission, and had not himself interfered, he was properly allowed to explain on redirect the reason for his failure to do so.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930,1000-1002; Dec. Dig. § 287.]
    2. Criminal Law (§ 622) — Joint Defendants — Severance—Application—Time.
    An application by one of two joint defendants for a severance, not made until after the jury had been impaneled and sworn and the indictment had been read to them, was too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1380-1383, 1385, 1386,1388-1390; Dec. Dig. § 622.]
    
      3. Criminal Law (§ 814)—Instructions— Applicability to Case—Assault to Rape —Aggravated Assault.
    Where the state’s evidence showed an assault with intent to rape a girl under 15, and defendant’s evidence showed that no assault of any character was committed, the court was not required to submit the issue of aggravated assault.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Criminal Law (§§ 1037, 1090)—Appeal-Review—Remarks of Prosecuting Attorney.
    Alleged improper remarks of the prosecuting attorney will not be reviewed, where they, are not shown by bill of exceptions and it does not appear that a special charge was requested with reference thereto.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645, 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. §§ 1037, 1090.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Sanford Hooper and Buford Benton were convicted of assault with intent to rape, and they appeal.
    Affirmed.
    C. E. Lane, 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.

Appellants were jointly indicted, tried together, both found guilty of assault with intent to rape, and their punishment assessed at two years’ confinement in the penitentiary.

A witness for the state, Cleveland Johnson, had testified as a witness for the state to material facts tending to corroborate the testimony of the witness Beulah Thomas, the alleged assaulted girl. On cross-examination the appellant elicited from him the fact that he had not promptly reported to the officers that an assault to rape was being made at the time and place he saw the appellants and the girl under the circumstances he described, and the fact he himself had not interfered. After they had elicited this testimony, on redirect examination he was permitted to explain why he had not interfered, and why he had not promptly reported to the officers that an attempt to rape was being made. Under the circumstances there was no error in the ruling of the court.

This case was called for trial, and both defendants announced ready for trial, a jury was impaneled and sworn, and the indictment read to the jury. The record discloses that Buford Benton made a verbal application to the court for a severance, asking that his codefendant, Sanford Hooper, be first placed on trial. The application came too late, for a serious question as to jeopardy would have been presented had the court granted the application. The application must be made before the trial is begun.

The state’s evidence makes a plain case of assault with intent to rape. The defendant’s evidence would show that an assault of no character was made. The girl was under 15 years of age, and, under such circumstances, it was not incumbent on the court to submit the issue of aggravated assault.

There is no bill showing that the district attorney made use of any such remarks as complained of in the motion for a new trial. If such remarks were in fact made, no special charge was requested in regard to the matter; and, as no bill is in the record evidencing that such remarks were made, the question is not presented in a way we can review it.

The evidence amply supports the verdict, and the judgment is affirmed.  