Appellant was convicted of the offense of rape of a female under the age of consent, and his punishment fixed at five years confinement in the penitentiary.
It appears from the first bill of exceptions in the record that the prosecution made a statement of its case, as is permitted by our statute, in the opening. No objection seems to have been made to the extended *Page 522 character of this statement at the time, although it was strenuously objected to in the presentation of the case in oral argument before this Court. After the said statement was concluded, appellant asked that he be permitted to again question the members of the jury which had been selected in accordance with the law and duly sworn, as to whether or not any of them had formed any opinion as to the guilt or innocence of the accused which might influence their verdict, from hearing the opening statement made by the prosecution. The request of appellant was refused by the trial court, and we see no error in such refusal. If the appellant felt that the State's right to make a proper statement of its case was being exceeded, and that his rights were being invaded, and he was suffering injury from the character of statement indulged in, the time for objection was when such statement was made. We know of no rule of procedure that would authorize the granting of the request referred to, or the discharge of any member of the jury who might be willing to state that he had concluded from the opening statement that the accused was guilty.
Appellant has several bills of exceptions pertaining to objections made to testimony of the prosecutrix as to her family surroundings and method of daily living. We are unable to see anything presented by any of these bills of exceptions from which possible harm might have come to the appellant. Several of the matters included were material as showing the movements and situation of the girl at the various times she says she was met by appellant anterior and leading up to the occasion of the intercourse between them. It was not objectionable to permit the prosecutrix to state that her father and elder brother were away from home at the time of these occurrences, it appearing from the record that her first report of the occurrences was made to the neighbors and officers. Nor do we see any valid ground of objection to permitting the prosecutrix, after appellant had asked her if any one else had ever been familiar with her, to state that no other person had had carnal connection with her prior to the date of this offense.
Appellant offered the testimony of a physician, to the general effect that the penetration of a female organ by that of a male, would probably rupture the hymen of the female if intact and normal, and would likely give evidence as to whether or not there had been any penetration. This testimony was refused by the trial court, and we think properly. There appears no evidence in the record of any examination having theretofore been made, or testimony thereof being offered, as to the condition of the private parts of the prosecutrix, or any other evidence making such testimony material and we are unable to see what issue the offered testimony of the physician could legitimately affect.
When appellant was a witness, he was asked relative to certain portions of two applications for continuance theretofore made and signed by him, the statements in which were contradictory of his evidence, and as to both he claimed that the statements therein were untrue, but *Page 523 offered certain explanations of his action in signing same. Each of said statements so referred to, if true, would have been very material to the defense, and if untrue, was material for the purpose of impeaching the testimony of appellant as a witness in this case. While appellant offered explanations as to how he came to make such statements, we do not think the State was precluded from offering in evidence such portions of each application as appellant was questioned about, and which were contrary to his evidence as a witness. Appellant asked a special instruction to the effect that the jury would not consider the second application offered by the State, but we think the instruction was properly refused. Wilson v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1017, is relied on as authority for the rejection of the matter contained in these applications, and the giving of such instructions. We think this case without application. The opinion therein set forth that there was nothing contained in the application offered by the State and admitted, tending to impeach appellant. In the instant case, appellant testified that he was not with the prosecutrix at any time or place after June 23, 1918. In the application for continuance offered in evidence, he set up that he expected to prove by a Mrs. Corley, that on the afternoon of July 8, 1918, the same being the date fixed by prosecutrix for the alleged offense, near the place where prosecutrix claimed to have been raped, and a few moments after the time fixed by prosecutrix that said Mrs. Corley saw the appellant and prosecutrix, and that she would testify that the prosecutrix seemed to be in a good humor, was cheerful, and was in no wise unnatural, etc., etc. It thus easily appears that the facts in the Wilson case, and the opinion therein, are not in point as bearing on the instant case, and that the statements of appellant in said application made by him, were most materially different from his testimony as given.
In his charge, the court pointedly told the jury that if they found from the evidence that appellant was not present at the McAnally Springs in San Saba County, between five o'clock p.m. and one-half hour before sunset on July 8, 1918, but was at another and different place, or that the jury had a reasonable doubt thereof, they should acquit. This charge made unnecessary the special charge asked by appellant, to the effect that if the jury found that the intercourse, if any, between appellant and the prosecutrix, took place on June 19, 1918, the jury should acquit. Prosecutrix had sworn positively that the act occurred at McAnally Springs on July 8. The court's charge above referred to, limits both time and place to the one named by her, and effectually instructs an acquittal if the jury believed it occurred at any other time or place.
We have omitted an extended discussion of the facts in this case, but are of opinion that they show an assault upon the morals of a young and inexperienced girl by a mature man of more than forty years of age; that the girl was led to believe that this man loved her, and would not undertake to induce her to do wrong; but that other *Page 524 girls did the same way as he was seeking to get her to do, without injury, and that she yielded her youth and innocence to his embraces. The lure of an automobile figures potently in the case, and probably had its effect on this prosecutrix, who first began to take rides therein harmlessly, but soon was being led on from kisses to embraces and indecencies and ruin. The jury was lenient with appellant in giving him five years in the penitentiary.
Finding no error in the judgment, the same is affirmed.
Affirmed.
ON REHEARING. February 23, 1921.