Appellant was indicted, tried, convicted, ■ and sentenced to the penitentiary for a period of two years, in the court below, for an assault with intent to rape one Kanegoda Aniol, under the age of ten years.
Challenges for cause to particular jurors are those enumerated in art. 636, Code of Criminal Procedure, and are applicable alike, with one exception, to all criminal cases. Art. 650. Ignorance of or-inability to speak and understand the English language, though not mentioned, has always been held a disqualification by virttie of the constitutional guaranties of a fair and impartial trial and one conducted by due course of the law of the land. Lyles v. The State, 41 Texas, 172; Yanez v. The State, 6 Texas Ct. App. 429. As shown by the judge’s explanation to the bill'of exceptions, the jurors were not liable to this objection, but “ were natives of the State, spoke English, and seemed to-have more intelligence than average jurors.”
If objection had been urged to its admission, all that, portion of the testimony of the mother of the injured child as to the statements and declarations of the child to her about the transaction would doubtless have been excluded. But no objection -having been made by defendant, we do-not feel authorized to pronounce its admission illegal. Smith v. The State, 41 Texas, 352.
With regard to the alibi, which is the only matter insisted upon in the brief of counsel in the case, we deem it only necessary to state that, in our opinion, the evidence of the defendant did not raise such an issue. His witnesses-directly and positively contradict themselves about his movements and conduct during the time covering the transaction, and it is too palpable, from their statements, that each was endeavoring to manufacture a tale to suit their ideas of the necessities of the occasion, to require of us a moment’s consideration of the pretended alibi. If we are *135to consider it, which of defendant’s witnesses shall we believe ? They both stand equally accredited by him, and their testimony is directly in conflict.
We find no error in the record requiring a reversal of the judgment, and it is therefore affirmed.
Affirmed.