The record having been perfected, the appeal is reinstated and the case considered on its merits.
Prosecutrix, Hattie Simek, who was between 15 and 16 years of age, attended school in the town of Dime Box, where appellant was employed as a teacher. On the 6th day of May, 1933, Bettie Mareck, James Sample and appellant drove in appellant's automobile to the city of Austin for purpose of attending a school meet. They returned to Dime Box on the same day, reaching there about 7:30 p. m. Prosecutrix lived about three miles from Dime Box. According to her version, appellant took Bettie Mareck and James Sample home first. Before reaching her home she and appellant got out of the car and had an act of sexual intercourse. She testified further that appellant had frequently written her notes during the time she was his pupil. Several of these notes were introduced in evidence by the State after witnesses had testified that they were in appellant's handwriting. We quote one of the notes as follows:
"Dearest: Please tell me what is wrong this a. m. I know you are not happy. Have I done anything wrong? I want to take you home this p. m. very much. Stay here at the school house until I come back. It will only be a few minutes. Slip me a short note with your His. exam paper."
Prosecutrix testified that after she became pregnant appellant sent her to Dr. Burns; that prior to that time appellant had given her some pills; that, in effect, appellant told her to state that others had had intercourse with her; that she told Dr. Burns that a negro had raped her. She testified further that she had told appellant during the time she was associating with him that several boys, whom she named, had had sexual relations with her. She declared, however, in response to questions by counsel for both sides, that appellant was the only person who had ever had an act of intercourse with her, and that the statements she had made concerning her relations with others were false. Touching this matter she testified, in part, as follows: "Well he (appellant) framed up the story. He *Page 102 told me not to give him in to my parents. When I made these statements, that was after this first act of intercourse with Monroe Kiel; about — in August. This first act of intercourse took place in May, and it was August that I told these things, and Monroe Kiel framed the story for me to tell. Yes, sir; it wasn't the truth about the negro raping me, but he told me to tell my parents. It was the truth I told him, but the fact is not the truth. I told Dr. Newton some time in September; I told my parents about two weeks before I saw Dr. Newton."
Testifying in his own behalf, appellant admitted that prosecutrix had accompanied him to Austin on the occasion in question, but denied that he had any improper relations with her. Moreover, he denied that he had written the notes the State introduced in evidence. He testified that after taking James Sample home he came back with prosecutrix to his own home and got his wife; that his wife then accompanied him to the home of prosecutrix, where they left her; that it was only a few minutes after Sample had left the car before he returned to his own home. He admitted that he passed his home with James Sample and prosecutrix in the car, and testified that he did not know why he did not stop at that time and get his wife. Appellant's wife gave testimony to the effect that she accompanied appellant when he carried prosecutrix home.
We are unable to reach the conclusion that the evidence is insufficient.
It is shown in bill of exception No. 9 that prosecutrix had testified, in response to questions by counsel for appellant, that she had told appellant that several boys had had sexual relations with her and further that she had told Dr. Newton and Dr. Holloman that she had had intercourse with a negro. Upon redirect-examination she was asked, over appellant's objection, the following question: "Were these things the fact?" Her reply was that she had never had intercourse with any other person except appellant, and that her statement concerning her relations with others was false. We think this testimony was relevant and material. Clearly the witness had the right to state that her declarations were false and to give her reasons for having made same.
It is shown in bill of exception No. 12 that when appellant's counsel was interposing certain objections to testimony the district attorney said to him, in the presence of the jury, "You object to the indictment too, don't you?" Appellant objected to the remark. The bill of exception recites that the court failed to rule on the objection and failed to instruct the jury to disregard *Page 103 the remark. While the statement was improper, we are not impressed with the view that it was of such a nature as to prejudice appellant's rights.
It is shown in bill of exception No. 14 that, over appellant's objection, prosecutrix was permitted to state her reasons for making false statements as to her relations with other men. Appellant had elicited from prosecutrix the fact that she had told him that she had intercourse with other men. Under the circumstances, we think it was proper for the State to show why the witness made the statements and that same were false.
It is shown in bill of exception No. 15 that counsel for the State used language as follows in his argument to the jury: "What if this had happened to your mother when she was a little child?" Appellant objected to the statement and the court instructed the jury not to consider it for any purpose. Under the circumstances, we think the bill fails to present reversible error.
We have not undertaken to discuss all of the bills of exception brought forward. A careful examination of appellant's contentions leads us to the conclusion that reversible error is not presented.
The court failed to make application of the Indeterminate Sentence Law. The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than five nor more than ten years.
As reformed, the judgment is affirmed.
Judgment reformed and, as reformed, 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.