The offense is rape, and the punishment is five years in the penitentiary.
We have carefully considered the evidence in the case and believe that it is sufficient to support the verdict. There are but two bills of exceptions contained in the record. Each of these bills complain at the argument of the district attorney. Bill No. 1 shows that the following argument was used: "I want you to consider the bastard child he the defendant has or is going to bring into the world, think of no happy Christmas to enjoy, no daddy to meet at home." By bill No. 2 complaint is made of the following remarks: "If you give this defendant a death penalty or a term of fifty years in the pen, which he ought to have, Maurine Cotner has hers already." We think these statements were not of such an inflammatory character as to justify a reversal of the case. They were matters of inference drawn by the district attorney from the facts in evidence in the case. They were certainly not of sufficient importance to justify a reversal in view of the fact that the lowest penalty was assessed.
The court correctly refused defendant's special charge No. 1 by which he sought to have the jury instructed that if they had a reasonable doubt as to whether some other person than the defendant had had carnal knowledge of the prosecutrix prior to the 2nd day of May, 1925, to acquit the defendant. A charge should always be based on evidence contained in the record and we have searched this record in vain for any testimony, direct or circumstantial, to the effect that any person other than the defendant had ever had carnal intercourse with the prosecutrix, and if the testimony is to be believed she had never had such intercourse with him except at the time at which he is charged with having raped her. There is no suggestion in this record that the prosecutrix was of unchaste character prior to the time of the alleged rape and the court correctly refused to present this theory in his charge.
Finding no error in the record, the judgment is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Morrow, Presiding Justice, absent. *Page 370
ON MOTION FOR REHEARING.