The offense is rape; the punishment, confinement in the penitentiary for five years.
The indictment contained two counts, the first of which omitting the formal parts, embraced averments as follows:
*179“Clavis Fanagan * * * did then and there unlawfully have carnal knowledge of Geraldine Forman, a female then and there under the age of eighteen years and then and there not being the wife of the said Clavis Flanagan * * The second count charged appellant with unlawfully ravishing and obtaining carnal knowledge of Geraldine Forman by force and "threats without her consent. In the charge of the court both counts were submitted to the jury. A verdict was returned finding appellant guilty as charged in the first count, that is, guilty of rape upon a female under the age of eighteen years.
Geraldine Forman was between sixteen and seventeen years of age on the first day of March, 1940, the date the assault upon her was alleged to have been committed. According to her testimony, she attended, a party at the school house on the night of the first of March, 1940. While playing a game which required couples to walk away from the school building she and appellant proceeded to a clump of pine trees which she judged to be about one hundred yards removed from the school building. While there appellant ravished her. She fought him to her utmost but was unable to prevent him from having sexual intercourse with her. Shortly after returning to the school house she reported, the matter to Thomas Jay.
Jay testified that prosecutrix was in tears when he talked to her. He also testified that after the alleged assault appellant stated to him that he had gotten in the “pants” of prosecutrix.
A physician who examined prosecutrix after the alleged rape testified that her hymen had been torn on the left side and that the vaginal entrance was about the normal size.
Appellant did not testify, but introduced a number of witnesses. Some of these witnesses gave testimony tending to show that prosecutrix had, prior to the alleged assault, had sexual relations with men. There was testimony to the effect that she had permitted men to kiss and embrace her. Some of the witnesses testified that prosecutrix had tried to induce appellant to marry her. It was the theory of appellant, given support in the testimony, that prosecutrix had falsely accused him of mistreating her in order to force him to marry her.
The State introduced sufficient evidence to warrant the conclusion that prosecutrix was chaste prior to the time appellant had sexual intercourse with her.
*180We have not undertaken to set out the testimony in detail. We deem the evidence sufficient to support the judgment of conviction.
As shown in bill of exception No. 1, appellant’s first application for continuance was overruled. It was alleged in the application that appellant was not ready for - trial on account of the absence of Christine Alsup, who was temporarily residing in Illinois, but who had formerly resided in Rusk County. According to the averments in the application, the witness would testify that prosecutrix told her after the alleged rape that appellant had not mistreated her; and that she falsely accused him of the offense in an effort to induce him to marry her. It was further alleged that the witness would testify that prosecutrix had requested her to arrange a meeting between prosecutrix and appellant in order that they might discuss the question of their marriage. The indictment was returned on the 6th day of July, 1940. On August 6, 1940, the trial was set for the 6th day of September, 1940. The witness left her home in Texas for Illinois about August 14, 1940. Appellant waited until September 6, 1940 — which, as observed, was the date the case was set for trial — to have process issued for the witness. The subpoena was not served in view of the absence of the witness from the State. If the subpoena had been promptly issued after the return of the indictment the witness could have been served. It is observed that more than a month intervened between the date of return of the indictment and the date on which the witness left the State. Approximately two months intervened between the return of the indictment and the date upon which the subpoena for the witness was, issued. We are of opinion that the facts stated conclusively show that appellant failed to discharge the burden resting upon him to establish the exercise of diligence. Ferrell v. State, 38 S. W. (2d) 796. We pass the question as to- whether the testimony of the absent witness was of a purely impeaching character.
Bill of exception No. 19 relates to- appellant’s averment in his motion for new trial that a discussion of his failure to testify had taken place in the jury room prior to the time a verdict had been reached. A majority of the jurors testifying affirmed that they heard no reference made to the failure of the appellant to testify, notwithstanding they were together with the balance of the jury practically during the entire time they were deliberating. The jurors who claimed to have heard mention made *181of the failure of the appellant to testify apparently did not identify the juror who made the remark. No juror testified that he made such a remark. If we comprehend the testimony adduced upon the motion, if such a remark was made, it was purely casual. The effect of the testimony was that some juror said: “If he wasn’t guilty why didn’t he take the stand and explain it to us and tell us he was not guilty?” Some of the jurors testified that the juror making the remark was admonished, in effect, that it was not proper to mention the failure of the appellant to testify, and that thereafter the matter was not again mentioned.
However, two or three jurors testified that the remark influenced them and said, in effect, that it caused them to vote for a conviction. It is not clear, under the testimony adduced, that the trial court was not. warranted in holding that no such remark was made. At all events, he was warranted in finding that if any juror made such remark he was promptly admonished and that thereafter no further mention of the fact that appellant had not testified was made. Under the circumstances, we are constrained to uphold the action of the court in overruling the motion for new trial. This court has expressly held that jurors may not be permitted to impeach the verdict of the jury by testifying that they took into consideration the failure of the accused to testify. Randall v. State, 49 S. W. (2d) 819. The writer is of opinion that the verdict may not be impeached by the testimony of jurors to the effect that a casual reference to the failure of the appellant to testify caused them to return a verdict of guilty. Be that as it may, we reiterate that we find no abuse of the discretion of the trial court in overruling the motion for new trial.
We have carefully examined all of appellant’s bills of exception and fail to find reversible error.
It is observed that the only point submitted in oral argument before this court was that relating to the conduct of the jury in the alleged discussion of the failure of the appellant to testify.
The judgment is 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.
*182HAWKINS, Presiding Judge.The foregoing opinion was prepared by Judge Christian and brought into consultation on the morning of April 15, 1941. During consultation, at about 10:30 a. m., he was suddenly stricken and soon lapsed into unconsciousness, and passed away about 7 o’clock in the evening of April 15. In the afternoon the court continued its consultation, considered the opinion, and adopted the same. It is now here formally announced as the opinion of the court under the name of our lamented co-worker, this April 23, 1941.