Appellant presents again as grounds for rehearing and reversal several of those presented in the original submission. We have again reviewed the record and reconsidered these grounds. They were all correctly disposed of in the original opinion. However, he has filed a brief on only some of these questions, earnestly contending that the court was wrong in affirming the judgment and still insists that on these grounds urged the judgment should be reversed. We have carefully considered his brief and argument on them. But will further review those thus presented.
In his first he again urges that the court committed reversible error in overruling his application for a continuance. This was sufficiently stated in the original opinion. His bill on this subject is based on the absence of Mrs. Stone and Mrs. Scott only. Therein he does not give either the whole or the substance of his motion for a continuance, nor does he refer to nor make the application a part of his bill. However, the original motion is in the record and, in passing upon the question, we considered it, although irregular. We do so again now. It shows that it was made on account of the absence of twenty-three witnesses, including said two. It further shows that the testimony of a large number of the others was very material to him and would in fact have presented a complete defense if they would testify what he said in his application they would. The record further discloses that the attendance of most, if not all of these other witnesses, was secured pending the trial, but that he failed to introduce a single one of them. His application further shows that he expected to prove by Mrs. Medford that the prosecuting witness in talking over her misconduct with defendant told her mother in her presence that she had been carrying on such conduct for more than four years before that time and "by the witnesses Mrs. Stone and Mrs. Scott defendant expects to prove substantially the same facts as set up as to the witness Mrs. Medford." That each of these witnesses had been subpoenaed; that "Mrs. Stone is sick and unable to attend court as is shown by certificate of Dr. Barnum, marked exhibit I, and by Dr. Tucker, marked exhibit J; that Mr. Medford says his wife is too sick to attend court." It will be seen by this that appellant did not purport to have any knowledge on the subject himself but depended solely upon the certificates of said doctors as to Mrs. Stone's illness. The certificates of said doctors are not attached to said motion, nor do they anywhere appear in the record. *Page 327 It will be seen also that the motion nor record elsewhere discloses why Mrs. Scott was absent. The record also discloses that no process whatever was afterwards issued for Mrs. Scott, nor any of the others as to that matter. The State says they lived in four or five miles of the courthouse. The trial continued for a sufficient length of time, so that the slightest diligence for process would have doubtless secured the attendance of Mrs. Scott in time to have testified. It is shown that Mrs. Medford's attendance was procured during the trial and that appellant did not introduce her as a witness at all. For aught that this record shows the certificates of the doctors were wholly insufficient to show that Mrs. Stone was unable to attend court by reason of sickness; they may have shown to the trial judge the reverse of this. The trial seems to have been concluded on September 23, 1914. Appellant's amended motion for new trial was not filed until October 17, 1914, and acted upon three days later by the court. No affidavit of Mrs. Scott nor of Mrs. Stone was filed showing that they or either of them would testify as claimed by appellant. Under all the circumstances this was material, if for no other purpose, to show appellant's good faith in attempting to secure a continuance on account of their absence. Not having had Mrs. Medford to testify at all after her attendance was secured and no affidavit of the others being attached showing that they would testify as claimed by appellant, clearly from this and all the other facts, the trial judge could properly conclude, as he doubtless did, that neither of the absent witnesses would have testified as claimed by appellant. In Mitchell v. State, 36 Tex.Crim. Rep., this court, through Judge Hurt, said:
"Moreover, we would remark as to the Harris County witnesses that one of them, towit, Chancery, by whom, according to appellant's application, testimony of a more material character for appellant could be elicited than by either of the other witnesses, that before the beginning of the argument in the case, said witness was produced and brought into court, and no effort was made on the part of the appellant to avail himself of his testimony. If appellant failed to avail himself of the best witness he had, according to his affidavit, when it was within his power to produce them before the jury, we can not reasonably presume that he would have used the other witnesses had they been present." See also Blain v. State, 34 Tex.Crim. Rep.; Treadway v. State, 65 Tex.Crim. Rep., 148 S.W. Rep., 659. Under no circumstances does the overruling of appellant's motion for continuance show any reversible error.
Appellant next urges that the trial judge committed reversible error in the colloquy which occurred between appellant's attorney, the State's attorney and the trial judge when he asked the State's witness, Miss Stripling, if she was capable of experiencing sexual desire the first time she had sexual relations with defendant, and the colloquy which occurred the next day after Miss Stripling had testified and the State had closed its case when he asked her again the same question he had asked her before in his cross-examination. We think these matters were *Page 328 sufficiently stated and correctly decided in the original opinion. Appellant now urges both and discusses them together, and as we understand, practically bases his whole contention on his claim that what the judge said at the time was a comment by the judge on the weight of the evidence, and cites several authorities showing that where this is the case and is prejudicial, it presents error. The legal proposition he asserts is a correct one, but its application to this case is quite a different thing.
What we said in the original opinion we think disposes correctly of this first question as to whether or not the prosecuting witness was capable of experiencing the sexual desire, etc., and there is no necessity to further discuss that. As to the second question as to appellant asking the prosecuting witness whether he asked her the same question the day before, we will state this matter a little more fully. In allowing appellant's bill on the subject, the judge said he approved it with reference to the statement of facts and particularly all testimony contained therein on this point. Hence, we go to the statement of facts. It shows that the State introduced the alleged seduced girl, Miss Rebecca Stripling, as its first witness. Her direct testimony outside of proving up a large number of letters written to her by appellant, was not lengthy. The cross-examination by appellant shows to have been quite extensive and searching. On this subject it shows that the appellant had her to testify that she wrote some letters to him. Then he asked her if in one of these she did not tell him that she was pregnant, "away back one year before this occurred, about?" The State objected to proving the contents of the letter, claiming the letter was the best evidence. The court sustained that objection. Then the statement of facts shows that this occurred (S.F., pp. 23-24):
"Q. I will ask you if you didn't have a conversation with Mr. Grimes in which you told him you were in that condition more than one year before, and try to get Mr. Grimes to marry you, more than a year before you were in that condition, actually? A. Say I wrote him a letter saying that? Q. No, ma'am, I asked you that a while ago and the court said you couldn't answer it; now, I am asking you this question, I asked you if you didn't have a conversation with Mr. Grimes in which you told him that you were in that condition and wanted him to marry you, more than a year before you were actually in that condition? A. No, sir, I did not."
Some time the next day after the State had concluded its evidence and rested, the appellant called Miss Stripling back to the stand for further cross-examination, as he stated. After asking her about other matters this occurred (S.F., p. 142): "Q. Now, I am not sure, but I believe I asked you the question yesterday, if you didn't tell Mr. Grimes that you were in the condition, with child, I mean, away back more than a year before the time you stated in your testimony yesterday as the time that you first had sexual intercourse with Mr. Grimes; did I ask you that question yesterday? State: We object to it; she has answered the question. Court: Yes, she was asked that yesterday and she said she didn't tell him. Defendant: Then, I want to ask the *Page 329 question again. State: We object to that, for it is just repetition, if the court please. Court: Yes, I am sure she answered the question, judge. Defendant: I want to ask the question again, if the court please, for I am sure she didn't answer it like the court says she did. Court: The objection will be sustained; there is no question but what she answered it yesterday; you asked her the question and she answered it. Defendant: We except to the ruling of the court. We were studying about that last night, and my recollection is that she answered to the contrary to what the court understood. State: She answered positively that she did not. Court: I think she did; you can have the benefit of it, judge, and the objection will be sustained. Defendant: We except to the ruling of the court."
This was not and can not be construed to be a discussion or comment upon the weight of the evidence by the trial judge. It shows simply that when appellant sought to ask the witness again, in substance, if not precisely, the same question he had asked and she had answered the day before, the State objected because it was a repetition. The appellant claimed, not that he had not asked the same question in substance the day before, but that she had not answered as the court and State said she had. As the objection to the question was made, it was necessary for the court to act upon the objection. He did so by stating what was a literal fact that she had answered the question and in the way the court stated she had. This was no comment whatever by the court on her testimony or the weight of it. In no way did it indicate to the jury whether the judge believed or disbelieved what the witness had testified. In no way did it indicate whether it was material or immaterial or had any bearing on the case. He merely stated what the witness had testified. In quoting from the testimony above, it is shown that the judge was exactly and literally true in his statement. Even if it could be construed as on the weight of the evidence, what was said by this court by Judge Davidson in Newman v. State, 64 S.W. Rep., 258, is applicable. After citing article 787, C.C.P., he said: "Construing this article it has been held that remarks of the court as to nature and weight of evidence will not be ground for reversal where the character of the testimony and its materiality to the case is not shown and it is not made to appear that probable injury was done by the remarks. Stayton v. State,32 Tex. Crim. 33, 22 S.W. Rep., 38; Chalk v. State,35 Tex. Crim. 116, 32 S.W. Rep., 534; Thompson v. State,35 Tex. Crim. 352, 33 S.W. Rep., 871; White's Ann. Code Cr. Proc., secs. 945-946 for collation of authorities."
The trial court must necessarily have a large discretion in refusing to permit the asking of a witness over and over the same question. This record shows, as stated, that this witness was asked this question specifically, and specifically answered it, as the court said she did when appellant the next day attempted to ask her precisely, in substance, the same question. If the court had no such discretion then there would practically be no termination to the examination and re-examination of every witness on every question over and over again. We think under *Page 330 the circumstances of this case the court properly exercised his discretion and what the judge said presented no error that would authorize a reversal.
The appellant again urges that the lower court erred in refusing to give his special charge No. 5, shown by his bill No. 13. Appellant claims that we did not dispose of this matter in the original opinion. We think we clearly did so, for on the point we quoted the charge of the court and then stated: "The court having instructed the jury as he did, it was not error to refuse the special charges requested on this issue and as the main charge of the court presented every theory of the case, there was no necessity to give any of the special charges requested." However, as appellant again presses the point, we will further discuss it.
The State, in the original submission of the case, urged that neither appellant's said requested charge No. 5, nor his bill to the refusal of the court to give it, in any manner explained when it was presented to the court for his action; and claimed that under the statute and the uniform decisions, this court could not consider the question. The State's contention was true, for neither the requested charge nor the bill to its refusal states when it was presented to the court for his action nor when he acted thereon. This was necessary under the uniform construction of the statute. Ross v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 306. This alone would be a complete answer to appellant's assignment of error on this point. However, in the original opinion we treated the matter as if the charge or bill showed that it had been presented to the judge and acted upon by him at the proper time. This requested charge is to this effect: That if Rebecca Stripling permitted defendant to have sexual intercourse with her for any other reason than a promise previously made by him to her to marry her and that she in good faith relied on such promise and for that reason alone permitted him to have sexual intercourse with her, or if she permitted such intercourse partly on such promise of marriage and partly to satisfy her own lust or sexual desire, or if she permitted it partly on account of faithfully relying on his promise to marry her and partly because he told her he would protect her and would use a rubber shield, to acquit him. We think the court properly refused this charge, if for no other reason, because it was based on questions not raised by the evidence and they were all coupled up together so that the charge should not have been given. It is the settled law of this State that wherever the charge of the court submits in a proper way the questions raised by the evidence that he should refuse special charges presenting the same thing or substantially the same thing. Secs. 834-5, White's Ann. C.C.P. As stated, we copied only part of the court's charge, but even in the part of it quoted, it is shown that the court told the jury in plain unequivocal language that before a conviction could be had they must believe from the evidence, beyond a reasonable doubt, four things, enumerating them. By one (b) that Rebecca Stripling consented to said act of intercourse, if any, upon the sole ground of a promise of marriage made to her by the defendant at the time or *Page 331 before the act of intercourse, if any, and that such act of intercourse was not indulged in by her on account of a desire onher part, lust, passion or other causes than a promise ofmarriage. And then told the jury (6) if you do not find beyond a reasonable doubt each and every one of the above four propositions to be established by the evidence you will return a verdict of not guilty, as the State must establish, not only one, but all of said four propositions beyond a reasonable doubt before a conviction can be had. And in a separate paragraph submitted the case to the jury for an affirmative finding, telling them that if they believed from the evidence beyond a reasonable doubt that defendant did, about the time charged in the indictment, seduce Rebecca Stripling, etc., and have carnal knowledge of her, etc., to convict him and assess his penalty. And further told the jury that they were the sole and exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to the testimony. We state again that as the court in the main charge presented every theory of the case it was not error to refuse to give said special charge.
It is not necessary to give a full statement of the evidence. The State's evidence and especially of the seduced girl properly corroborated, as it was, was amply sufficient to establish appellant's guilt and authorize the jury to convict him. The fact, if it be a fact, that Miss Stripling was indefinite or uncertain as to dates or contradicted herself, would be no ground for this court to disturb the verdict. Her veracity and accuracy was for the lower court and jury, not this court. The jury saw and heard her, and her manner of testifying and the examination and cross-examination of her, and the argument of the respective attorneys, especially that of appellant showing her contradictions and seeking to have the jury to disbelieve her. Doubtless it was all presented by appellant's able attorney and perhaps answered by the State's attorney. At any rate, it was for the jury and the lower court and they believed the testimony which they had the right to do. Kearse v. State, 68 Tex. Crim. 633.
The motion is overruled.
Overruled.