Appellant was convicted of rape and awarded seven years confinement in the penitentiary.
This is the second appeal, the first being found reported in80 Tex. Crim. 82, 188 S.W. Rep., 983.
There are two counts specified in the indictment, one alleging rape committed by force, and the second count charges rape upon a girl under fifteen years of age. Appellant made application to require the State to elect upon which count it would proceed with the trial. This was refused by the court, and under the authorities we think the action of the court was correct. See vol. 1, Branch's Ann. P.C., sec. 444. It is not necessary to require the State to elect where the indictment charges in various counts the same offense to meet any possible contingency that might arise under the facts.
There are quite a number of bills of exception, we think, that do not require discussion. They are so indefinite as not to present revisable matters. By way of illustration, bill No. 1 recites that the State, over appellant's objection, was permitted to ask prosecutrix the following question: "Did it hurt you or not?" and defendant objected for the reason that same was leading, which objection the court overruled, and appellant reserved his bill of exceptions. There is no answer given. In order that bills of exception present matters for review the bill should show the answer and connecting facts that this court may be able to determine whether there was error or not.
The following bill of exceptions says the court erred in permitting the same witness to be asked the following question: "Did his private parts go into you — penetrate your privates or not?" There is no answer given to this question.
Appellant asked this question of the same witness: "Don't you know that if you had said a word, or had holloed that someone would have heard you?" This is all the bill shows. No answer is given, and no *Page 160 expected answer. The same may be said about practically all of these bills of exception.
Going down the list we find bill No. 7 recites that while the defendant was on cross-examination by the State he was asked who was keeping house for him. To this defendant objected because it was prejudicial and seeking to get before the jury that some other negro woman and not his wife was living with him. These are but grounds of objection and do not state the answer or the expected answer. Grounds of objection can not be held to state facts.
Bill No. 8 recites that the State was permitted to ask and prove by Fannie Durst that Golly Booker, the alleged injured party, came to where she, Fannie Durst, was working and told her that the defendant, Walker Smith, had done something to her, and had intercourse with her, throwing her upon the bed, getting on top of her, etc. The objection was that this was not original testimony and could not be used against the defendant; that it was not part of the res gestae, not in the presence and hearing of the defendant, and was prejudicial. These are but grounds of objection. The length of time between the supposed act of getting on top of her and having intercourse with her, and the time of the statement is not shown. It may have been immediately so as to constitute part of the res gestae, but the bill of exceptions is silent upon this question, except as stated in the ground of objection, which does not take the place of the facts.
Another bill recites that while the State's witness Cloudy was testifying the prosecution was permitted to ask if he saw defendant at Mally Green's house, and at another house in that vicinity, just before the witness Mally Green, mother of prosecutrix, came over there and said something to the defendant. Objection was urged to this because it was not part of the res gestae. Just what the error was is not shown by this bill, nor is it shown anything was said between the parties, or what Mally Green said to the defendant, or whether she said anything.
Another bill recites the State asked the same witness, Mally Green, "What did you do?" and appellant objected to that, it being contended that appellant was not present. There was no answer given, nor any of the facts showing that anything could have been injurious by reason of asking this question.
Another bill recites that while the county attorney was making his closing argument he used the following language: "Martha Forney, defendant's witness, was within call of the courthouse, and the defendant did not have her summoned, or used as a witness in the other trial of this case," to which argument defendant called the court's attention, and requested the court to give a special charge in writing to the effect that they could not consider for any purpose the argument of the county attorney wherein he stated that Martha Forney, defendant's witness, was within call of the courthouse, and defendant did not have her summoned or used as a witness on the other trial of this case. The objection urged was that the argument called the attention of the jury to a previous trial, and that no testimony had been introduced *Page 161 showing said witness had not been summoned as a witness on the other trial, was outside of the record, and that unsworn statements of counsel for the State before the jury, on material facts adverse to a defendant or his witness which are not put in evidence during the trial, are improper and prejudicial to the rights of a defendant before the jury. We are of opinion that inasmuch as these grounds of objection are not statements of fact but simply grounds of objection, that the bill is deficient. On cross-examination of appellant's witness Martha Forney, the State brought out testimony, without objection by appellant, "that this is the first time I have testified in this case. I lived here when it was tried before, but I never testified then. I do not know how far it is from my house to the courthouse." This was the reference the county attorney made in his argument. On cross-examination of the witness Cloudy appellant also brought out evidence relating to the former trial. We are of opinion that the county attorney's argument had a basis in the facts. Referring to the testimony of the witness Martha Forney, as found in the statement of facts, it is discovered she lived in the town of Nacogdoches, and but a few steps from where this rape is said to have occurred, and she narrates some of the testimony that occurred between the parties in which defendant took part. She further testified that "This is the first time I have testified in this case. I lived here when it was tried before but I never testified then. I don't know how far it is from my house to the courthouse." We are of opinion that there is no error shown by this bill of exceptions.
We are of opinion that the evidence is sufficient to justify the finding of the jury, but deem it unnecessary to state the facts.
The judgment is affirmed.
Affirmed.
ON REHEARING. November 14, 1917.