The offense is rape; the punishment confinement in the penitentiary for thirty-five years.
Appellant challenges the sufficiency of the evidence. We deem the evidence sufficient to support the conviction. Appellant admitted the act of intercourse, but declared that prosecutrix consented to such act. Prosecutrix, Angelina Vitopil, and Leonard Shelton testified to facts showing that appellant accomplished the act of intercourse *Page 661 by the use of force, and that prosecutrix put forth her utmost resistance to prevent being outraged. According to their testimony, prosecutrix attempted to run away, begged appellant to desist, fought him until her strength was gone and screamed for help. Shelton testified that he did not interfere because of the fact that he was afraid of appellant. State's witnesses testified to having heard prosecutrix scream and to having seen her attempt to leave appellant's car. Another witness testified that on the day following the commission of the offense appellant stated to him, in substance, that he had been out with a "little old girl" the night before; that she would not let him have intercourse with her; and that he accomplished his purpose by the use of force. We deem it unnecessary to further discuss the revolting details of the transaction.
It is shown by bill of exception Number 1 that appellant desired to ask prosecutrix if she did not go out to numerous dances, both public and private, with different boys; if she did not keep the company of certain girl companions, who were common prostitutes and women of easy virtue and bad repute; if she did not become intoxicated while at dances; if she had not been put off of the dance floor because of her drunkenness and indecent dancing and conduct; if she had not been out on drunken parties with certain named men, who on each occasion hugged and kissed her. It is recited in the bill that appellant would have proved by prosecutrix "that some of these facts were true and that she would have denied some of them being true." It was further recited that appellant would have produced certain named witnesses, who would have testified that the things inquired about occurred. The bill is multifarious. Some of the matters inquired about could not properly be received in evidence. We are not advised what the answers would have been to questions which may have been proper. It is, therefore, manifestly impossible to appraise the bill.
In his argument to the jury, private prosecutor referred to appellant as a "beast in human form." The argument was objected to, the jury were promptly admonished not to consider it and appellant's written requested instruction on the subject was submitted. If error, the prompt action of the court in the premises, in our opinion, saved appellant from injury.
Appellant complains of the action of the court in refusing to submit several special charges, which were to the effect that prosecutrix must have resisted to the utmost or otherwise consent would be presumed. We note that in the main charge the court instructed the *Page 662 jury that if prosecutrix did not put forth her utmost resistance to prevent carnal knowledge appellant should be acquitted. Furthermore, the jury were charged that if they had a reasonable doubt as to whether prosecutrix consented to the act of intercourse they would acquit appellant. Again they were advised that it was not necessary that consent be put in words, and that if prosecutrix yielded her person to appellant, that would be in law consent. Several of appellant's requested charges on the same subject were submitted to the jury, among them being an instruction that it was necessary for prosecutrix to resist to the utmost extent whatever force or efforts appellant made to have carnal knowledge of her, and that if the jury had a reasonable doubt as to whether prosecutrix acquiesced, consented or agreed by word or act to the act of intercourse, appellant should, be acquitted. In another charge, given at the request of appellant, the jury were instructed that if they believe that appellant only desired to fondle and persuade prosecutrix to have carnal relations with him and that he did not intend to have carnal knowledge of her without her consent and that he did not have carnal knowledge of her without her consent they would acquit him. In view of the fact that the general charge and requested instructions submitted to the jury covered the subjects embodied in the rejected instructions, the court did not err in refusing to submit such instructions.
Appellant alleged in his motion for a new trial that two jurors who were prejudiced against him sat on his jury. It was averred that said jurors had, before being summoned for jury service, stated, in substance, that appellant was guilty and ought to be convicted. The court heard evidence on the motion. Each juror denied the statement attributed to him, and disclaimed any prejudice against appellant. The court did not err in overruling the motion. In Branch's Annotated Penal Code, Section 565, the rule is stated as follows:
"When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant's guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the appellate court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge."
In Meadors v. State, 275 S.W. 829, in discussing a similar question, this court said:
"When there is a controversy raised as to this character and kind on motion for a new trial, and the trial court hears the testimony, *Page 663 his decision is not reversible under such circumstances, and is only reversible when the testimony is all one way or when the decision is clearly wrong."
See also McKenzie v. State, 11 S.W.2d 172.
We have carefully examined every contention made by appellant and fail to find reversible error.
The judgment is 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.
ON MOTION FOR REHEARING.