Statutory rape is the offense; the punishment, five years’ confinement in the State penitentiary.
Prosecutrix is the eleven-year-old niece by marriage of appellant. On the afternoon of December 20th, 1939, appellant came to the home of prosecutrix’ grandmother, with whom she and her seven-year-old brother, Tony, lived, called to the two children to come out to the car, and asked them if they wanted to go to the picture show. They both got into the car and rode away with him. Upon arriving at the show, both prosecutrix and Tony got out, whereupon appellant told her to get back into the car. He gave Tony money with which to go to the show. Appellant then drove out on a country road and stopped the car. As to what happened, we quote from her testimony:
“After he stopped he sat for a while, and then he told me to take off my pants, and I did. I did so because he told me to. I obeyed him because he threatened me once before; he told me that if I ever told anybody that, that would be the worse for me, and then he told me I would have to go to Bellaire. That is the reason I took off my pants.
*188“I took off my pants. Then he unbuttoned his pants and took his private parts out. Then he told me to lean back on the seat. I did it. I did it because he told me to. Then he put his private parts inside of mine.”
Appellant then drove back to the show, let prosecutrix out of the car, and, after giving her a dollar, told her to- call her grandmother and tell her she was going to the show. The call was made. The grandmother instructed her to' get Tony and come home immediately on the bus.
Upon arriving at home, she made no outcry, nor did she report to her grandmother what had happened or of appellant’s conduct towards her. She excused her failure to do so because of fear and threats of the appellant. Some nine days thereafter the grandmother discovered a discharge on her underclothes and questioned her, whereupon she told her grandmother of appellant’s treatment. The grandmother reported to the prosecutrix’ mother, who lived in the same city. The mother questioned her and she again told of appellant’s treatment. The mother carried her first to appellant’s wife and then to the family physician, who examined her and found that the hymen had been ruptured and her privates then in an inflamed condition. Some ten days later another examination was made, this by the county health officer, who corroborated the fact that the hymen had been ruptured.
Appellant did not testify as a witness in his own behalf. He offered testimony sufficient to raise the issue of alibi to the effect that he was at another and a different place at the time and on the occasion fixed by prosecutrix.
The facts are sufficient to support the jury’s conclusion of guilt. Hamilton v. State, 37 S. W. 431; Cook v. State, 228 S. W. 213, 88 Texas Crim. Rep. 659 , Armstrong v. State, 252 S. W. 777; Moore v. State, 236 S. W. 477.
Complaint is made of the receipt in evidence of the fact that prosecutrix told her grandmother of appellant’s treatment. The objection was that such testimony was. hearsay. It is to be noted that the State did not offer the details of the conversation with the grandmother or details of what prosecutrix told her. In cases of this character, the introduction of such testimony is not error. Bedgood v. State, 3 S. W. (2d) 99; Reeves v. State, 10 S. W. (2d) 90.
*189Moreover, appellant proved by his wife, while testifying upon her direct examination, that when prosecutrix and her mother came to report the matter of her husband’s conduct to her, she was told by the mother that prosecutrix had accused appellant of raping her.
Upon cross-examination of the family physician, appellant sought to prove that, after he had made the examination of prosecutrix, he made a voluntary suggestion to her that “The best thing for her to do was to go home and forget about it.” The State’s objection to this statement was sustained. Such statement constituted nothing more than an opinion and conclusion of the witness and therefore was not admissible. Campbell v. State, 10 Texas Ct. App. 560; Campbell v. State, 141 S. W. 282.
Upon motion for new trial, appellant complained for the first time that venue had not been proven. The complaint came too late, as venue is presumed unless made an issue upon the trial of the case. Branch’s P. C., Sec. 452. Moreover, the prosecutrix repeatedly testified that the offense occurred in Harris County.
In the light of the State’s testimony, with the minimum punishment having been assessed, we are unable to agree that the appellant was- prejudiced by the questions and testimony to which his objection was sustained.
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.