on appellant’s motion for rehearing.
HAWKINS, Judge.Appellant’s motion is predicated on bills of exception Nos. 1, 11, 3, 7, 7a, 5, 6, 19, 20, 30 and 21. We state them in the above order because they so appear in the motion. In support of the motion a strong written argument has been filed urging that we were in error as shown in some of the bills mentioned, which written argument was supplemented by a forceful oral presentation of appelant’s contentions.
Bill No. 3 complains of the court’s refusal to compel the state to elect between acts of intercourse. Bills 5 and 6 complain of the admission of evidence regarding the finding, some time after the date of the alleged offense, of chewing gum wrappers, a square glass jar and other small articles claimed b;r prosecutrix and her sister to have been thrown away by appellant and his companion Davis on the date of the alleged offense. The questions presented in these bills (3, 5 and 6) were considered in the original opinion and were correctly decided against appellant’s contention. We see no necessity of again reviewing those matters.
It is again insisted that in granting the state’s motion for rehearing *521and affirming the judgment tve were in error in our holding regarding complaint of testimony given by the district attorney Braly. We have again examined the record upon this point. The manner in which the question relative to statements of prosecutrix and her sister got into the record is believed to be correctly set out in the opinion on the state’s motion for rehearing. The conclusion therein reached with reference to the district attorney’s evidence regarding the matter is thought to be correct, and will, therefore, not be again discussed.
Bill No. 1 complains of the court’s action in denying application for second continuance because of the absence of certain named witnesses. The motion for new trial was based in part on this same complaint. The bill covers ninety pages in the transcript. It contains the application for continuance, the exhibits attached thereto, the affidavits and evidence submitted on the motion for new trial. All of these have been carefully reexamined. The bill is too long to undertake here to discuss it in detail. After another careful review of the question we are not impressed with the soundness of appelalnt’s contention that the court committed error in denying the continuance, or in overruling the motion for new trial predicated on such action.
Bill No. 11 brings forward complaint of the court’s charge on alibi, upon the ground that the same shifted the burden of proof. The instruction given is in form the same as that found in Leahy v. State, 111 Texas Crim. Rep., 570, 13 S. W. (2d) 874. The wording of the charge there given was not approved, but it was held that the instruction could not have misled the jury. We entertain the same view regarding the charge here.
Bills 7 and 7a relate to the same subject. Appellant testified in his own behalf. On cross-examination counsel representing the state commenced to inquire about whether he had formerly lived in Arizona. This was objected to as being immaterial. State’s counsel told the court that he would follow it up by showing its materiality. He later asked appellant if he had ever been arrested, tried or convicted, for impersonating a federal officer in Arizona, to which appelant answered that he never had; in respones to another question he said he had never been convicted in the state of Arizona for anything in the federal or state courts. No objections were interposed to the questions last mentioned. Later on, when counsel asked appellant if he had not been “arrested” in Flagstaff, Arizona, objection was interposed upon the ground that the inquiry was improper unless it could be shown that the arrest was followed by indictment which preferred a felony charge or prosecution for a misdemeanor involving moral turpitude. The court sustained this objection. As we understand the bill, counsel for appellant then requested the court to withdraw from the jury all. of the inquiries with reference to whether appellant had been convicted for impersonating a - federal officer in the *522state of Arizona, which the court declined to do. In view of the result of the inquiry it perhaps would not have been improper for the court to have withdrawn it, but in view of the negative answer of appellant we can see no harmful effect which could possibly have resulted. There is nothing in the bill which impresses us with the idea, which seems to be entertained by appellant, that state’s counsel was pursuing an inquiry which he knew to be improper.
Bill of exception No. 19 reflects that prosecutrix and her sister testified that on the occasion of the alleged rape under investigation in the present trial, and at the scene of the alleged offense, two negroes, a man and a woman, came by the car in which appellant and his companion Davis, and the two girls, were, and that both Johnson and Davis cursed the negroes and told them to go on, which they did; that the negroes were traveling south, or southwest. We understand from the record that the direction the negroes were walking was towards Magic City. Upon cross-examination of prosecutrix, counsel for appellant evidently asked her if she knew where the negroes were now, to which she replied, “No, I don’t know where they are now.” This inquiry from appellant first brought into the record any question as to the whereabouts of the negroes at the time of the trial. Later, the state used a witness, L. P. Holland, who lived at Magic City. The witness drew a map indicating various situations, indicating the roads that were used traveling from Magic City to Shamrock. He testified that there was a negro family consisting of a man and his wife and children living in a house which witness had located on the map. Witness also stated that these were the only negroes who lived in that locality. The witness further testified that on the morning of the alleged rape he saw these two negroes coming into Magic City. He gave the time as between nine and eleven o’clock in the forenoon. The tesitmony of Holland was objected to as being irrelevant and not connected with any facts or circumstances in the case, and as not being competent testimony to corroborate the prosecuting witness on her statement that the negroes were at the scene of the alleged rape. The testimony objected to may not have been of very strong probative force, but this went more to its weight than to its admissibility. The trial judge was in a position to understand the map which had been drawn by the witness and used by him in giving his testimony, and could better appraise the admissibility of this testimony than it is possible for us to do. The bill does not show the testimony to have been inadmissible.
Bill 20 also relates to these negroes. It complains because the state was permitted to prove by the same witness Holland that he had not seen the negroes since about March 17, 1929, and that in May of that year he went over- to where the negroes had lived and they were not there. Appellant objected to this testimony on the ground that it was not shown that appellant was responsible for the absence or disappearance *523of the negroes. It will be remembered that appellant had first injected into the case the fact that the prosecuting witness at the time of the trial did not know where these negroes were. Under these circumstances it would not be held error for the witness Holland to testify that the negroes had left the neighborhood. We find nothing in the bill, nor in the statement of facts, which carries with it the charge or implication that appellant had anything to do with the disappearance of these witnesses, or that process had ever been issued for them. If the state had proven that process for the witnesses had been issued, it would have perhaps carried an implication that appellant might have been responsible for getting the witnesses out of the way as he is shown to have been a deputy sheriff at the time of the alleged offense, and up to the time of the trial.
We note that to support his contention with reference to bill 20 appellant in his original brief relies on Askew v. State, 59 Texas Crim. Rep., 152, 127 S. W., 1037; Oliver v. State, 96 Texas Crim. Rep., 633, 259 S. W., 589; Matthew v. State, 109 Texas Crim. Rep., 560, 5 S. W. (2d) 994. In addition to these may be noted as bearing on the subject Schultz v. State, 97 Texas Crim. Rep., 473, 262 S. W., 493; Parker v. State, 86 Texas Crim. Rep., 222, 216 S. W., 178; Funk v. State, 84 Texas Crim. Rep., 402, 208 S. W., 509. In none of the cases mentioned was the question of absence of the witness introduced by appellant as in the present case; in most of them the facts appearing in the development of the case, or the evidence offered by the state regarding the absence of the witness, carried with it an unsupported implication that appellant was responsible for the witness’ disappearance.
In appellant’s motion for rehearing he refers us to bill of exception 30, regarding the argument of the district attorney. We find no bill of exception 30 in the transcript; from the context of the motion we assume that appellant refers to special charge No. 15, found on page 23 of the transcript, in which the court was requested to instruct the jury not to consider the statement made by counsel in his closing argument, as follows: “That if defendant stood so well in Wheeler County, why didn’t he have some people here from Wheeler County to testify how good he was and how good his standing was.”
The court declined to instruct the jury to disregard said argument. In the absence of any bill of exception pointing out why or how such argument was improper we are bound by the presumption that the court in declining to give the charge acted properly.
Bill of exception 21 complains of the admission of testimony from the witness McMurtry. Prosecutrix and her sister had testified that on the day of the alleged rape, and while they were on the road, some boys had been following them; that appellant stopped his car at a certain point in the road, fired off his pistol and motioned for the boys to go on, which they did. One of the girls had testified that there was a house not far from *524where this occurred, with an orchard near the house. McMurtry testified, over objection, that he heard a shot on the road south of his house, and saw a touring car and a closed car on the road on the Sunday morning in question, and that his attention was attracted to it by the shot; that he did not know which way the cars went after this time. Witness further says that there was a little orchard between his house and the road, but not between where witness was and the cars in the road. The description of the cars as given by McMurtry corresponded with the cars occupied by appellant and that in which the boys were riding. We perceive no error in the admission of this testimony. While the witness McMurtry was unable to identify the parties in the cars, the incident itself, and the location, makes it reasonably certain that the parties McMurtry saw were the ones referred to by prosecutrix and her sister.
In the argument on rehearing our attention is particularly directed to a statement in the original opinion to the effect that the evidence raised the issue of passive acquiescence by prosecutrix, and it was thought at that time the matter had not been raised in the trial court. Reference is made in that opinion to Stringer v. State, 102 Texas Crim. Rep., 333, 278 S. W., 208, 209. Special requested charges 6 and 9 are referred to as having been asked upon the subject of passive consent, and their refusal is urged as error. The requested charge, for the refusal of which the Stringer case was reversed, is copied in the written argument on appellant’s motion for rehearing, and is in the following language: “Mere intercourse coupled with passive acquiescence, is not rape by force. There must be resistance upon the part of the alleged raped female, dependent upon the circumstances surrounding her at the time and the relative strength of her and the defendant, and every exertion and means within her power must be made to prevent the penetration of the person of the woman; and unless such means and exertion are used, the defendant should be acquitted, and if you so find or have a reasonable doubt as to the facts, you will acquit the defendant.”
At the instance of appellant, the court gave three special charges upon the subject. In special charge No. 7 he told the jury that if appellant had sexual intercourse with prosecutrix with her consent, or if they had a reasonable doubt thereof, they should acquit appellant. In special charge No. 10 the jury was told that it was not necessary that consent be in words, but that if prosecutrix yielded her person to appellant such would in law be consent. The other special charge given at the request of appellant, (shown in the transcript to be special charge eleven) is in the exact language of the charge which was refused in the Stringer case. It evidently was copied from the opinion in that case. The court having recognized the issue of passive acquiescence, and having given the charges referred to, properly refused special charges 6 and 9 upon the same subject.
Appellant further urges that this court should hold the evidence insuf*525ficient to support the verdict. We have again examined the nauseating details upon which such contention rests. It may be admitted that the facts furnish grounds for a strong argument in support of such position. Viewing the situation as understood in the light of subsequent events it is difficult to understand why prosecutrix did not make report of the matter sooner. On the other hand, if prosecutrix’s evidence be true, the conduct of appellant and Davis at the time of the arrest of the girls and the boys who were with them, their subsequent threats to further prosecute the girls, their suggestive reference to the pistols with which both appellant and Davis were armed, seem to furnish grounds supporting the reason given by prosecutrix that she was afraid of them, and submitted because of such fear, and for a like reason refrained from reporting the rape. It can not be conceived that able counsel representing appellant omitted making before the jury the most of the same incidents here urged as not supporting the verdict. There are facts in the record which do support it. If we should agree with appellant’s contention we would simply be substituting our judgment for the jury’s upon a fact issue.
We are constrained to overrule the motion for rehearing.
Overruled.