In his motion for rehearing the appellant stresses his contention that, by bill of exception No. 4, prejudicial error was disclosed. The bill relates to the cross-examination of Gladys Reed, the prosecutrix. During her cross-examination counsel propounded the following question: "He had on lace high boots; high boots? You saw him with those boots on?" Objection was made that the inquiry was repetition; that the witness had three times made answer to the same question. The bill of exception shows that in the cross-examination the witness had given substantially the same testimony as that called for in the question that was sustained.
The state's witness Calvin Frederick testified that he saw the appellant near the place where the assault took place at a time shortly before it was claimed by the prosecutrix that it did take place; that the appellant at the time had a shotgun in his possession. The identity of the *Page 507 appellant at the time and place mentioned and the identity of the gun were circumstances relied upon by the state. On cross-examination the witness said that according to the best of his recollection, the appellant at the time was wearing boots, — an ordinary pair of boots laced up. Appellant contends that he expected a negative answer from the witness. The appellant's contention is illustrated by the following quotation from the motion for rehearing: "The answer expected to be given by the prosecutrix was simply 'No.' This defendant had every reason to expect that such an answer would be given because of other testimony of the same witness, to-wit: Testimony that when the attacker approached, the night was brightly illuminated by the moon, and that she had never told any one that her attacker wore boots, not even the county attorney. This evidence shows that the prosecutrix had a good opportunity to observe whether the attacker wore boots, and if she did not tell even the county attorney such a pertinent fact of identity, it is reasonable to suppose that she never saw boots on the negro."
From the statement of facts, it appears that on cross-examination the prosecutrix gave the following testimony: "I recognized this negro when he first came up to the car. I could see him well enough at that time to know him. It was a bright moonlight night. He had a hat on his head. He had his hat on. It was a crushed down at the top. It was just a flat-top hat, and he had something around his head, some sort of bandage. The bandage was wrapped around his head and his hat was on one side. * * * I don't know whether he had on shoes or boots. I didn't pay much attention to his feet. I couldn't say whether he had on shoes or boots. I don't know whether he had on shoes or boots. I did not tell the Sheriff that he had on boots. * * * I never did tell any one that. I, never, at any time, told any one that he had on lace high boots, or high boots. I did not tell any one that he had on high boots. I have talked to a great many about it since it happened. I talked with some one about it that night. I talked to Mr. Hammonds that night. Mr. Hammonds was the first man there. He is a Deputy Sheriff here in Beaumont. * * * I gave Mr. Hammons a description of the negro that night. I did not tell Mr. Hammonds that the negro wore boots."
We perceive no error in the ruling of the court; nor is it thought that the ruling injured the accused. It is manifest that the prosecutrix had definitely claimed a number of times that she did not know whether the appellant wore boots and disclaimed any knowledge upon the subject. This appears both from the bill of exception and statement of facts. The identity of the appellant at the time of the assault was vouched for by both the prosecutrix and her companion, Spencer Burke. By their testimony the weapon or gun possessed by the appellant and used by him in the assault was identified. The assault was made upon a bright moonlight night between eight and nine o'clock. The prosecutrix and her *Page 508 companion were in an automobile when the appellant appeared and presented a gun. By threats he compelled Burke to get out of the automobile. After he was forced out of the car, Burke fled and by telephone reported the assault to an officer. The prosecutrix was positive in her declaration that her female organ was penetrated by the appellant's male organ. He shoved her down, pushed aside her "step-ins," and accomplished the rape.
On cross-examination, the prosecutrix testified that she first talked to Mr. Scurlock, the district attorney, and told him that the negro did not penetrate her. She explained on the witness stand that she did not know the meaning of the word "penetration;" that she did not understand what he meant; that she was twenty-four years of age and had never had any experience of that kind and did not know what penetration meant until it was explained to her.
We perceive no testimony reducing the offense committed to aggravated assault. The testimony of the prosecutrix, if believed, shows all the elements of rape, including the assault and penetration. Appellant denied the assault in toto. On the subject, see Dusek v. State, 48 Tex.Crim. Rep.,89 S.W. 271; Charles v. State, 81 Tex.Crim. Rep., 196 S.W. 179.
The motion for rehearing is overruled
Overruled.