Appellant insists that we erroneously disposed of the matters complained of in his bill of exceptions No. 12. As we grasp the argument made by appellant in his motion, his insistence seems based on the proposition that allowing the state to bring him back on the stand and prove by him that since the commission of this offense he had married a sister of Elbert Jones and that Elbert Jones had married a sister of appellant, must have had the effect of greatly prejudicing the jury against him. The undisputed facts show that there were four people in a car together who took a ride on the evening of the alleged rape, viz.: this appellant, Elbert Jones, Lena Tabor, a sister of prosecutrix, and prosecutrix, Esther Tabor. The state introduced in its behalf Lena Tabor and Esther Tabor. There was evidence showing that at a former time the state had used Elbert Jones. The testimony of the two girls mentioned made plain before the jury the fact that if Elbert Jones so desired he could give testimony material to the solution of this case. Presuming the state to be in possession of the facts testified to by appellant when recalled, at the time complained of, the state did not deem it wise or expedient to introduce Jones. Appellant testified in his own behalf and closed his case without introducing Jones. For the sole purpose of explaining its failure to use the witness Jones, as it appears to us, the state made the proof by appellant of the change in the relationship between him and Jones resulting from their respective marriages. We cannot believe the testimony of any material injury to appellant. The prosecutrix testified unequivocally to the fact of her being under the age of consent, and that appellant had intercourse with her. She is substantially corroborated by her sister. Two doctors who examined her the next morning said she had been violated. The jury gave appellant the lowest *Page 455 penalty. This does not lead us to think that anything in the testimony created any prejudice against him. We are unable to agree with appellant in his contentions.
The motion for rehearing will be overruled.
Overruled.