Appellant devotes most of his motion to a discussion of the supposed error of the trial court in permitting testimony of various acts and transactions between appellant and the prosecutrix, each and all of which seem to have been admitted upon the ground that they showed intimacy and familiarity and association between the parties such as might lead the jury to conclude a greater likelihood of the commission of the offense. This matter was discussed and passed upon in our original opinion in which, after adhering to the general rule permitting such testimony, we further said that the testimony might be held admissible because the same facts substantially were given in evidence without objection by the prosecuting witness. Appellant's attack is upon the soundness of this last statement. A more careful examination of the record leads us to conclude that while appellant did not object to the testimony of prosecutrix regarding these transactions, when same was originally offered, yet we find that after the evidence was concluded appellant made a motion to exclude the testimony of prosecutrix on the particular point referred to in our opinion as having been given in testimony by her without objection. Many authorities might be cited as supporting the proposition that where illegal testimony has been admitted without objection and thereafter a motion is made to exclude it, the trial court should have sustained the motion. Branch v. State, 15 Tex.Crim. App. 96; Thomas v. State, 17 Tex.Crim. App. 437; Phillips v. State, 22 Tex.Crim. App. 139; Martin v. State,67 S.W. 1115; Hearn v. State, 97 S.W. 1050; Clay v. State,180 S.W. 277. However, we are of opinion that beyond any question the testimony was admissible as showing familiarity, friendship and association between appellant and the little girl. In the comparative recent case of Adams v. State, 252 S.W. 597, we had occasion to examine the authorities and reaffirm our adherence to the doctrine of the admissibility of such testimony. None of the transactions testified to by any of the other witnesses amounted to acts of intercourse between appellant and the prosecutrix. All of them tended to show familiarity between them, intimacy existing and frequent association, and all of *Page 318 them tended to strengthen the likelihood of the commission of the offense as testified to by prosecutrix.
We are not in accord with appellant's complaint at the charge of the court which was in substance that the jury were told that if any person should take hold of a female under the age of eighteen years and handle her in such a manner as under the circumstances of the particular case demonstrates a present intent to at once so subject said female to his power, she consenting or not, as that he may now accomplish the act of intercourse, he would be guilty of assault with intent to rape. We are inclined to think the objections to this charge are not well founded.
Being unable to agree with either of the contentions made by appellant, his motion for rehearing will be overruled.
Overruled.