Conviction for rape; punishment, life imprisonment in the penitentiary.
From the state's standpoint appellant and another stopped a 14 year old girl on her way home from school; appellant, at the point of a pistol, compelled her to submit to an assault in which he had carnal knowledge of her. Appellant's defense was that of an alibi, he introducing several witness who located him, on the day of the alleged assault, at another and different place. This defense was fully and adequately submitted to the jury by the trial court. The girl in question made out a case of rape *Page 514 by force, but the indictment contained two counts, charging in one rape by force, and in the other statutory rape, and the honorable trial court submitted the offense of statutory rape.
We find in the record fourteen bills of exception. There is no ground for complaint of the refusal of the trial court to submit the case upon the law of circumstantial evidence, the testimony of the state being positive that carnal knowledge was had.
While it would not have been inappropriate for the court to tell the jury not to consider the first count in the indictment, there is nothing in the record suggesting that any improper use was made of said count by the jury, and the failure of the court to so instruct seems not to have resulted in harm.
The refusal of appellant's special charge, complaint of which appears in bill of exception No. 3, was not erroneous in as much as every element in same was covered by the main charge. The refusal of a special charge, complaint of which appears in bill of exception No. 4, could have no application in a case of rape by consent of a girl under the statutory age. We do not agree with appellant's counsel that the testimony shows the girl to have been over 15 years of age. She testified positively that she was 14, as did her relatives, and the fact that in her cross-examination she made statements about the length of time she had lived at different places, in view of her qualifying testimony in this regard, furnishes no basis for the claim that she was over 15.
Appellant moved for a new trial upon the ground of misconduct of the jury, and upon the presentation of the motion for new trial evidence was heard. We have carefully examined this evidence and find it in no support of appellant's contention in this regard.
This court is unable to agree to the proposition that the punishment inflicted by the jury was excessive, unreasonable or unusual. The girl in question testified to an assault by this appellant, during the accomplishment of which another Mexican was waiting in a car, and that after appellant had ravished her, he then told her that it was the other man's turn now, but that she escaped through the brush before the other man came.
The testimony of the jurors heard in support of appellant's contention of misconduct, did not support a claim that there was a discussion of the failure of the appellant to testify in the case; nor was any such separation of the jury shown as amounted to a violation of the statutory command that the jury be kept together during the trial. It was shown that there was a bath room in the court house, and that during the trial, which lasted some days, and occurred while it was very hot weather, some of the jurors were permitted to take a bath, and that no officer accompanied them into the bath room. Also that some of the jurors slept in the court room while other jurors slept in the jury room. These jurors *Page 515 all testified that there was no communication between them and any other person during such claimed separation. We have substantially covered all of the complaints appearing in the able brief of appellant, and in the record.
Finding no error, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.