The state's motion for rehearing has challenged our attention. A further consideration of the record leads us to believe we were in error in ordering a reversal of the judgment. To make clear the matter as it now appears to us it is necessary to make a more detailed statement than would ordinarily be called for.
It is revealed by bills of exception that the state called as a witness J. W. Little, City Marshal of Hillsboro. Before he testified, counsel for appellant stated to the court that they had talked to said witness and also to the witnesses, Mrs. Penny and Mrs. Landrum, and stated that each of them would testify to separate and distinct criminal offenses committed by appellant on the prosecuting witness, Zoenell Livingston, and that by said latter witness only could the state present any testimony indicating the complete offense of rape. (It would be well to remember that the offense for which appellant was on trial as alleged in the indictment was that of rape upon Zoenell Livingston, a little girl about eight years of age.) For the reasons given, appellant requested the court to direct counsel for the state to first place prosecutrix on the witness stand. This request being denied he objected to the testimony of Little, Mrs. Penny and Mrs. Landrum on the grounds heretofore stated. The objection was overruled. Little testified that about two months before the date of the alleged offense he saw appellant and prosecutrix go into the candy kitchen; that he watched them, and that while prosecutrix was eating ice cream appellant had his hand under the table feeling of prosecutrix and had his hand on her privates. The testimony of the two ladies is set out in the original opinion and it is unnecessary to restate it here. The transaction testified to by them appears to have occurred in the daytime in an alley in the city of Hillsboro. This court has had occasion many times to announce that proof of more than one act of intercourse in a prosecution for rape is ordinarily not admissible *Page 314 unless coming within some of the exceptions exemplified in the cases cited in the original opinion, but it has never departed from the well-recognized rule that acts showing intimacy, familiarity and association between the parties but falling short of showing another act of intercourse is always admissible. Branch's Ann. Tex. P. C., Subdiv. 4, Sec. 1788; Henard v. State, 47 Tex.Crim. Rep., 82 S.W. 655; Battle v. State, 63 Tex.Crim. Rep., 140 S.W. 785; Clardy v. State,147 S.W. 570; Gibbs v. State, 88 Tex.Crim. Rep.,227 S.W. 1107; Rosamond v. State, 101 S.W. 315, 276 S.W. 247. It may well be doubted if the testimony of Little as to the transactions occurring in the candy kitchen, and that of the two ladies as to what they observed in the alley, transcends the rule admitting testimony showing intimacy, familiarity and association between the parties. Aside from this, however, there is another reason why the admission of this evidence does not demand a reversal. Zoenell Livingston was called as a witness after the other parties had testified. The only objection urged to her testimony was that she was incompetent because not understanding the nature and obligation of an oath. This objection being overruled, the witness testified in detail to the transactions referred to by Little and the two ladies and also to appellant's conduct toward her at other times. She gave evidence as to a transaction which occurred upstairs over the hardware store at about the date of the indictment and some two weeks prior to the transaction in the alley. It is not necessary to go into the details of her evidence with reference to the transaction over the hardware store, it being sufficient to state that if her testimony had been received by the jury in its entirety it was sufficient to make out a complete case of rape, but the testimony of physicians indicated that penetration had not been accomplished and on this, evidently the jury based the verdict of assault with intent to rape. In testifying as to the transaction in the alley prosecutrix went further than the two ladies, prosecutrix claiming that appellant put her down on the ground, pulled her clothes up and started to get on top of her about the time the ladies came up. All of this testimony from the little girl went into the record without any objection being urged that it related to independent offenses. The court restricted the right to convict to the transaction alleged to have occurred upstairs over the hardware store. We quote from Wagner v. State, 53 Tex. Crim. 307,109 S.W. 169.
"It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if the same fact is proven *Page 315 by other testimony not objected to. See Rogers v. State, 26 Tex. App. 404[26 Tex. Crim. 404], 9 S.W. 762; Walker v. State, 17 Tex. App. 16[17 Tex. Crim. 16], Johnson v. State (Tex.Crim. App.),26 S.W. 504; Stephens v. State (Tex.Crim. App.), 26 S.W. 728; Logan v. State, 17 Tex. App. 50[17 Tex. Crim. 50]; West v. State, 2 Tex. App. 460[2 Tex. Crim. 460], and Carlisle v. State, 37 Tex.Crim. Rep., 38 S.W. 991."
See also Gurski v. State, 93 Tex.Crim. Rep.,248 S.W. 353.
The evidence of prosecutrix having gone before the jury without objection save that she was an incompetent witness, the objection theretofore urged to the testimony of Little and the two ladies about the same matters is not available to appellant as basis for reversal, even should it be conceded that the court committed error in admitting it in the first instance.
Having concluded that we were in error in the original opinion in reversing the case upon the point heretofore discussed, it is proper now to dispose of other questions presented in the record.
Bills of exceptions 1, 2, 5 and 6 relate to the question already disposed of and will not be further adverted to.
The indictment alleged that appellant made an assault upon prosecutrix; that she was under eighteen years of age and not appellant's wife, and that appellant did "ravish and have carnal knowledge" of prosecutrix. Appellant attacked the indictment on the ground that it was duplicitous in that it charged in one count both rape by force and rape upon a female under the age of consent, and did not apprise accused of what offense the state would seek to convict him. This court discussed the matter at some length in Dyer v. State, ___ Tex.Crim. Rep. ___, 283 S.W. 802; Patton v. State, ___ Tex.Crim. Rep. ___, 287 S.W. 51. Upon authority of those cases we think appellant's contention untenable.
Bills of exceptions 3 and 4 relate to the same matter. After the witness Little had observed the conduct of appellant toward prosecutrix in the candy kitchen he took appellant to the office of the mayor of Hillsboro and testified that after the mayor had released appellant he made the following statement to witness:
"He said he had done wrong and he was sorry of it, and he never would do it any more, and that he would get out of town and stay out of town and stay away from the little girl."
Upon cross-examination it developed that appellant remained in the mayor's office some five or ten minutes and left a few minutes after the mayor released him; that he had made practically the same statement to the mayor before he was released that he made to Little afterward. Objection was interposed to admitting in evidence the statement made to Little on the ground *Page 316 that appellant was under arrest when it was made. After the facts were further developed on cross-examination a motion was made to have the court exclude the statement testified to by Little on the ground that appellant was either under arrest, or had been so recently released that he was still under a sense of restraint at the time it was made. We think the bills show no error in regard to the matter.
When the state offered prosecutrix as a witness objection was interposed that she was incompetent to testify, because not understanding the nature and obligation of an oath. Bills of exceptions 7 and 8 relate to this matter, and contain the evidence given by the witness. Both bills are explained by a statement from the trial judge that before the witness was permitted to testify he propounded to her a number of questions and satisfied himself as to her intelligence and understanding. The rule controlling was restated in the recent case of Nichols v. State, 99 Tex.Crim. Rep., 270 S.W. 555, as follows:
"The competency of a witness is primarily a matter to be determined by the judge presiding at the trial of the case, and his ruling will not ordinarily be overturned unless it appears that in accepting the evidence judicial discretion was abused. Hawkins v. State, 27 Tex. App. 273[27 Tex. Crim. 273], 11 S.W. 409; Charles v. State, 81 Tex.Crim. Rep., 196 S.W. 179; Anderson v. State, 88 Tex.Crim. Rep., 226 S.W. 414."
The same question is discussed in Hennington v. State,101 Tex. Crim. 12, 274 S.W. 599. We observe nothing in the bills leading to the conclusion that the trial judge abused his discretion in permitting the witness to testify.
The other complaints presented are criticisms of the charge and because of refusal of certain special charges. Upon investigation of these complaints we find no error which in our opinion calls for a reversal. The charge given seems to have protected appellant in all his legal rights and therefore it became unnecessary to give any of the special charges requested.
The penalty inflicted is a severe one and this has caused us to give most careful attention to the record. While the age of the appellant does not appear directly from the record, yet it is in evidence that his wife testified that she and appellant had been married thirty-seven years. From this it is apparent that appellant was a man past middle life, yet the evidence shows persistent attention to the prosecutrix, in this case who was a child only eight years of age. His conduct toward her would result in the defilement of both her mind and body. *Page 317
The state's motion for rehearing is granted, the judgment of reversal set aside, and the judgment of the trial court is now affirmed.
Affirmed.
ON MOTION FOR REHEARING BY APPELLANT.