Appellant was convicted in the District Court of Ellis County of the offense of rape upon a girl under the age of consent and given five years in the penitentiary.
There was abundant evidence showing numerous occasions on which the appellant met the little girl in question, who was but fourteen years of age, and took her out riding in his car. Appellant was a married man. One witness testified positively to seeing an act of intercourse between appellant and prosecutrix. Two physicians who examined the child said that her private parts were enlarged so as that she could easily have had intercourse with a man.
There is but one bill of exceptions in the record which presents appellant's objection to the introduction of the girl as a witness after appellant had himself testified, it being objected that this was not rebuttal evidence. The latitude given to our trial courts in the order of the introduction of testimony is almost without limitation, and unless there be an affirmative showing of some injury or the probability thereof from the action of the court in allowing the State to introduce evidence after the defendant has closed, we will not ordinarily review the action of the court below. See Art. 718, Vernon-Sayles C.C.P. and authorities cited; Hewitt v. State, 10 Texas Crim. App. 506; Mancha v. State, 57 Tex.Crim. Rep.. An examination of the testimony of the witness complained of reveals the fact that much of her testimony was in rebuttal. Appellant positively affirmed that he had never driven her out in his car but three times, and that he had never hugged her or kissed her, or indulged in familiarity with her person. She contradicted him upon each of the above questions.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 116
ON REHEARING. March 28, 1923.