on state’s motion for rehearing.
LATTIMORE, Judge.Upon further consideration of this case we are of opinion that we erred in reversing same for the admission of statements given in testimony by District Attorney Braly. To make plain the reasons for this conclusion, it is necessary to recapitulate from the record. Two sisters, Mildred and Ellen, were together on the occasion of the alleged rape of Mildred. A few days after the occurrence and on Thursday Mildred made to the county attorney of Wheeler county a written statement detailing the transaction. Two daj^s later, on Saturday, Ellen, at Chillicothe, made to the same official a written statement of said transaction. On the trial hereof Mildred’s statement was introducsed by the state in connection with her re-direct testimony, as is more fully set out later. Ellen’s statement was not introduced, appears nowhere in this record, and we find no effort made by the state to show similarity or difference between the respective statements.
We were in error in our opinion in saying “It was apparently the theory of the prosecution that the statement (i. e., the written statement) of each of these witnesses was true because they agreed in all material parts, without opportunity of consultation or fabrication, and was therefore a strong circumstance of guilt.” We find upon closer examination no such theory suggested by the testimony. We were also in error in saying “Such testimony was originally introduced by the state,” i. e., evidence of the making of the two similar statements, one by Mildred in *518Wheeler county on Thursday, and the other by Ellen in Chillicothe on Saturday. As a matter of fact the state offered Naylor Pogue as its first witness, and in his direct testimony there is not a word in reference to any written statement by either girl. In his cross-examination the defense drew out of this witness the fact that Mildred made a written statement to County Attorney Allred at Wheeler. On re-direct examination this witness affirmed that he was not present in the room when the statement referred to was made, did not see Mildred sign it, and all he knew about it was hearsay, — did not know what she said.
Mildred Brock was the state’s next witness, and nothing was asked her on direct examination about making any written statement, — but on cross-examination the defense elicited from her the fact that she had made a written statement to the county attorney of Wheeler county. On redirect examination of this witness the statement made by her was identified and admitted in evidence, and is set out. The defense re-cross-examined her at length as to the comparison between her statement made as a witness here, and her written statement given to the county attorney. The state later offered Ellen as a witness, and in the latter part of her direct testimony she said she made a written statement to Mr. Allred,— but the state did not offer the statement or draw out of the witness a single fact contained in same. She affirmed that she had never seen any statement made by her sister, nor had she ever been told of the contents of any such statement. On her cross-examination the defense asked her about certain statements in her own written statement, and later went back in its examination to the written statement of the witness and there for the first time appears any question as to the similarity or dissimilarity between the statement made by her and the one made by Mildred.
In this condition' of the record, and apparently for the purpose of meeting the insinuation of the defense that the testimony of Ellen was influenced in some way by the written statement made by Mildred, and that there was a frame up to prepare for a damage suit, the state introduced County Attorney Allred who swore that on Thursday after the alleged rape, at Wheeler, he took the written statement of Mildred; that no one was present when he took same; that he only had the original which he did not show or read to anyone; that he gave the written statement to Mr. White to convey to District Attorney Braly. Allred further testified that he talked to Mr. Braly over the phone, and the latter asked him to go to Chillicothe and get Ellen’s statement as quickly as he could and before the parties had time for a conference, which he did the Saturday following. Allred said that he neither sent nor showed Ellen a copy of Mildred’s statement, nor did he tell her what was in it. Evidently for the purpose of following up what became of Mildred’s statement, the state then put on Mr. White who swore that he received the statement from Allred, took same and delivered it to District Attorney *519Braly. That no one saw it except Clebourn Cash, mayor of McLean, who read it to witness in a car while on the way to where the district attorney was. Cash took the stand and testified that he read this witness’ statement to White as they went along and that he had never told any one of its contents. The state then put on Mr. Braly patently to show that no improper use of Mildred’s statement had been made of it after he received it from White. After detailing where he kept it and what he did with it, Mr. Braly wound up his testimony with the following statement: “I would like to state this with the court’s permission, that I did not convey any information of the contents of this statement to Mildred Brock or Ellen Brock or as I recall any member of the Brock family at that time. I don’t believe I ever have for that matter. They may have been before the grand jury as a witness and the statement or some part of it may have been read there, but I can state positively that no information of the contents of this statement was conveyed to them nor did they have any opportunity to get the information.”
Appellant’s bill of exception No. 24 sets out objection to a part of the above quoted testimony of Mr. Braly on the ground that same was the opinion of the district attorney, that same was not competent to contradict Mr. Allred when he said that Ellen told him the Pogue boy had told her what was in Mildred’s statement. We might digress here to say that nowhere in the record do we find that Ellen ever told Allred that the Pogue boy had told her what was in Mildred’s statement.
The effect, importance, and weight of any given testimony is to be determined from its relation to other matters. The jury in this case had heard Mr. Braly testify how and when the written document came into his possession. They knew it was Mildred Brock’s statement. They knew that Pogue had sworn that he never saw said statement; that Allred had sworn that no one was present when said statement was reduced to writing, and that he made no copy and told no one of what was in same; he specially denied telling Ellen; that he gave it to White; that White took it to Braly, and that no one saw it except Cash, who testified he had told no one of its contents. Nor can we lose sight of the fact that what was in Ellen’s written statement was not before the jury, and its truth or falsity was therefore a matter of no relevance to any issue in this case. In such situation we might well quote with approval what was said by Judge Davidson in Jinks v. State, 35 Texas Crim. Rep., 365, 33 S. W., 868, to the effect that unless incompetent evidence could have enhanced the penalty or brought about a different result, its admission would not justify or call for a reversal, and let the matter go at that, but manifestly he was undertaking to make no statement affecting the information or opportunity for same, which the Brock’s may have gotten relative to Mildred’s statement, before it came into his hands. Manifestly the jury understood that, after stating in detail what he had done with it *520.since he had had it in his hands, the expression complained of in appellant’s bill of exception No. 24 was but Mr. Braly’s shorthand rendering of the facts known to him and relating to his care and keeping of this document during the time it had been in his possession. The jury were men of supposedly ordinary intelligence and could hardly have been misled by Mr. Braly’s statement into believing anything else than what we have indicated.
In appellant’s resistance to the state’s motion for rehearing he sets up that if we grant the state’s motion there are other bills of exception presenting complaints which were not discussed in "the original opinion, which deserve attention and probably would call for a reversal of the case, such as the refusal of his continuance, complaint of improper argument, and the admission of certain testimony. We have examined these matters and are of the opinion that error appears in none of them.
The facts have been fully considered. The injured female was a girl under sixteen years of age at the time of the alleged rape. She swore to a state of facts showing one of the most outrageous courses of conduct by men in official position which has ever come to this court. She said Johnson threatened her, put his hand on his gun, jerked off her bloomers, pushed her into the back seat of the car, and had intercourse with her, she crying all the time and beginning him to stop. She did not consent. Appellant took the stand and denied the intercourse. The solution of facts is for the jury. They believed the state witnesses.
The state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the court below is now affirmed.
Affirmed.