In the light of appellant's motion for rehearing we have again considered his complaints based on the refusal of the trial court to allow him to ask each venireman the questions appearing in his bills of exception Nos. 1 to 6 inclusive, and are of opinion that none of his contentions are sound. We quote the question asked, as set out in his bill of exception No. 6, as illustrative: "The prosecutrix will testify, so we assume, that she had never before on any other *Page 574 occasion been penetrated by any other person than the defendant on the occasion in question, in other words, never had sexual intercourse with any other man. Now should it develop on the trial of the case that at sometime the prosecutrix had been penetrated, but as to whether the defendant penetrated her or some other man, the defendant will offer testimony to the effect that she had been penetrated by some other man and that will in part depend upon circumstantial evidence, facts and circumstances that will support the supposition that she had had intercourse with other men. Are you so prejudiced against circumstantial evidence that you cannot take into consideration, or do you believe that strong facts and circumstances, notwithstanding she says she didn't, could be strong enough to show that she was mistaken?"
Little analysis would seem needed to make plain the fact that no juror could give answer intelligently to such hypothetical inquiry.
We believe that the expression used in our original opinion, in discussing bill of exception No. 8, viz: that said bill fails to show what the answer of the juror would have been to the question asked, should not have been used, and same is withdrawn from said opinion. However, since it is not shown that the talesmen to whom the question was propounded, sat on the jury in the trial of the case, the error, if any, of sustaining the state's objection to said question, could not avail appellant. The authorities cited by Mr. Branch in section 543 of his Annotated P. C. all sustain the proposition that it must be shown that, as a result of the alleged error of the court in the matter complained of, the juror in question or some objectionable juror was forced on the accused. In his motion for new trial appellant sets up that the court refused to let him ask the same question here involved of the other talesmen, but there is nothing in bill of exception No. 8 or elsewhere in the record to support this contention.
Appellant again urges that the case should have been continued for the absence of his witness Baker. We find in the record what appears to be an application for such continuance made after the trial began, but if such application was ever presented to the trial court for action until in the motion for new trial, such fact does not appear from the record. No bill of exception presents the alleged error of such refusal to continue. This is always held necessary. See cases cited in subdivision 6 of the notes to article 667, Vernon's Annotated C. C. P.; Gray v. State, 100 Tex.Crim. Rep.; Payne v. State, 100 Tex.Crim. Rep., 272 S.W. 788.
We have uniformly held that where there appears no controversy as to the facts that the female involved in a case of rape is under fifteen years of age at the time, the law applicable does not call for the submission to the jury of the question of her previous unchaste character.
We think the argument, complaint of which is renewed in the motion *Page 575 for rehearing, not of such wrongful character as to call for reversal. The motion for rehearing will be overruled.
Overruled.