Appellant was indicted by the grand, jury of Olay county, charged with the offense of rape on his own daughter, who, it is alleged, was under 15 years of age, and when tried was convicted and his punishment assessed at 15 years in the penitentiary.
The indictment contained five counts, the first being: “In the name and by the authority of the state of Texas, the grand jurors for the county of Clay, state aforesaid, duly organized as such at the October term, A. D. 1910, of the district court of said county, upon their oaths in said court present that Van Smith, on or about the 1st day of November, one thousand, nine hundred and nine (A. D. 1909), and anterior to the presentment of this indictment, in the county of Clay and state of Texas, did then and there unlawfully make an assault in and upon the person of Mabel Smith, a female then and there being under the age of 15 years, and she, the said Mabel Smith, not then and there being the wife of the said Van Smith, and the said Van Smith did then there ravish and have carnal knowledge of the said Mabel Smith, against the peace and dignity of the state.” The other counts contained the same allegations, except that in the second count the date of the offense is on or about the 1st day of January; in the third, the 1st day of May; in the fourth, the 1st day of July; and in the fifth, the 15th day of August, 1910.
[1] Appellant’s attorneys moved first to quash the indictment, on the ground that it alleged five separate and distinct offenses. When this was overruled, appellant filed a motion to require the state to elect on which count it would prosecute appellant. In approving this bill of exceptions, the court states: “The foregoing bill is approved with this statement: That the court did not refuse to require the state to elect upon which count in the indictment he would rely for a conviction; but that he stated to the district attorney that he would require him to elect, at the close of the testimony in chief by the state, upon which count he would rely for a conviction, and at the close of the examination of the witness Mabel Smith the district attorney voluntarily elected to rely upon the fifth count in the indictment, and upon motion of defendant’s counsel the court instructed the jury then and there not to consider any testimony, except that offered in the fifth count in the .indictment.”
In discussing the question here involved, in the case of State v. Parish, 104 N. C. 687, 10 S. E. 460, it is held:
“While the practice of requiring the prosecution to elect, in some instances, between the different counts of a bill of indictment, or between distinct transactions, each constituting the offense charged in a particular count, prevails both in England and in the different states of this country, the weight of authority has established, generally, the rule that it rests in the sound discretion of the nisi prius judge to determine whether he will compel an election at all, and, if so, at what stage of the trial. 1 Bishop’s Crim. Pro. § 205; Id. §§ 6 to 9; 1 Roscoe on Cr. Ev. marg. p. 207; 1 Wharton’s Crim. Law, § 423; State v. Woodward, 21 Mo. 265; People v. Baker, 3 Hill (N. V.) 159; State v. Haney, 19 N. C. 390. * * * The better rule for the exercise of this discretion is that the election ought to be made, not merely before the case goes to the jury, as it is sometimes laid down, but before the prisoner is called on for his defense at the latest. Roscoe, Cr. Ev. marg. p. 208; Bishop’s Cr. Pro. § 215; State v. Smith, 22 Vt. 74. It is true that a different rule was adopted in Michigan, and in the interpretation of one particular statute in Alabama. But the courts of those states stood almost alone in so limiting the sound discretion of the trial judge, and especially in driving the prosecution to an election before any evidence is heard, or at an early stage in its development. State v. Czarnikow, 20 Ark. 160; Kane v. People, 8 Wend. (N. Y.) 203; State v. Elye, 26 Me. 312; State v. Haney, 19 N. C. 390; State v. Reel, 80 N. C. 442.
“There has been less controversy about the exercise of the legal discretion, where testi- *1175' mony as to various transactions, each one constituting, if the evidence is Relieved, a misdemeanor, has been heard. In such eases, nearly all the courts conceded the right of the presiding judge, in his discretion, to refuse to drive the prosecution to the election at all; hut some go so far as to doubt the power of the court to compel an election. 1 Bish. Crim. Pro. § 209; Kane v. People, supra. This court has repeatedly held that the presiding judge might, in his discretion, hear the evidence on a number of counts in a single indictment charging felony, or ‘on a number of distinct bills, treating each as a count of the same bill,’ and refuse to require the solicitor to elect till the close of the evidence for the state. State v. Hastings, 86 N. C. 596; State v. Dixon, 78 N. C. 558; State v. Watts, 82 N. C. 656; State v. Haney, supra; and State v. Reel, supra.
“In State v. McNeill, 93 N. C. 552, Justice Merrimon, delivering the opinion, says: ‘So that distinct felonies of the same nature may be charged in different counts in the same indictment, and two indictments for the same offense may be treated as one containing different counts, subject to the right of the defendant to move to quash, in case of inconsistent counts, and the power of the court to require the prosecuting officer to elect the count or indictment on which he will insist. This certainly may be done, and we can see no substantial reason why the same rule of practice may not apply to several indictments against the same parties for like offenses, when the just administration of criminal justice will thereby be subserved.’ In State v. Haney, supra, Judge Gaston says: ‘It is, however, in the discretion of the court to quash an indictment or compel the prosecut- or to elect on which count he will proceed, when the counts charge offenses actually distinct and separate.’
“In State v. Morrison, 85 N. C. 561, Justice Ruffin, for the court, says: ‘The common-law rule is that, if an indictment contains charges distinct in themselves, and growing out of separate transactions, the prosecutor may be made to elect, or the court may quash.’ ”
It is seen that the court did not overrule the motion to require the state to elect, but stated to the district attorney that the court would require him to elect at the close of tlie testimony for the state in chief, and the district attorney did make an election at the close of the testimony of the first state’s witness, and before the defendant was required to introduce any testimony, and the court instructed the jury that defendant was on trial only under the fifth count in the indictment. McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833.
In Dalton v. State, 4 Tex. App. 333, it is held: “Both by precedent and authority, the rule is now well settled ‘that it is permissible to charge, in separate courts, two or more offenses in the same indictment.’ 1 Bishop’s Cr. Proc. c. 32; 1 Archb. Cr. Proc. § 39. And Mr. Wharton says it cannot be objected in error that two or more offenses of the same nature, on which the same or a similar judgment may be given, are contained in different counts in the same indictment; nor can such objection' be maintained, either on demurrer or arrest. 1 Whart. Cr. Law, § 415. And again: ‘In cases of felony, when two or more distinct offenses are contained in the same indictment, it may be quashed, or the prosecutor compelled to elect on which charge he will proceed; but such election will not be required to be made where' several counts are introduced solely for the purpose of meeting the evidence as it may transpire; the charges being substantially for the same offense.’ 1 Whart. Cr. Law, § 416; Weathersby v. State, 1 Tex. App. 643; Dill v. State, 1 Tex. App. 278; Waddell v. State, 1 Tex. App. 720. As to the time when an election should be made, the authorities are not agreed. Our Supreme Court, in Lunn v. State, 44 Tex. 85, says: ‘The prosecuting officer should not be required to make the election before he has examined the witnesses far enough to identify the transactions to which the testimony relates, without going into details. When this, has been done, the election should then, as a general rule, be made before defendant offers his evidence.’ That case, however, was essentially different from the one we are considering, in this respect: That not only were two distinct offenses charged in the indictment, but it was further shown that the hogs were not all stolen on one occasion, but at different times. The necessity for an election in such a case is too apparent for comment.”
It is thus seen that whether an indictment, containing more than one count charging different felonies, will be quashed, or the state required to elect upon which count it will prosecute, is a matter within the discretion of the trial court; and, the court, in this instance, having notified the state’s counsel he would be required to elect as soon as the testimony was developed sufficiently to en-ble him to do so, there was no such error in this matter as should cause a reversal of the case, inasmuch as we have held that in this character of case all the evidence would be inadmissible under one count in the indictment.
The prosecuting witness testified: “My name is Mabel Smith. * * * I know what my father has been arrested for, and what he is charged with. During the last 12 months out there, my father had sexual intercourse with me. My father had sexual intercourse with me along during the months of November and December, 1909. This occurred in the house, in the house that we lived in — out here where we live. I know it is a fact that he had intercourse with me during the month of November or December *1176of 1909. He had intercourse with me at night. He did have carnal intercourse with me by force. During the 12 months intervening from the first of November, 1909, up to the time of my father’s arrest, he had intercourse with me at different times. He had intercourse with me during that time about twice or three times a week. He did this during the last year that X lived with him. He had intercourse with me during each month of the present year, beginning from January 1st up to the time that he was arrested, and as many as twice or three times a week in each month. All of these acts of intercourse occurred in the house and in the bed. I never had intercourse with my father in the daytime. I never had intercourse with my father at any other place, except in the bed there at home. My father said that he would kill me if I told it. My father has threatened me with a gun and with a knife. It was in August that he threatened me with a gun — August of this year — it was the 5th day of August that he threatened me with a knife. That did not occur over our having intercourse. I do not know what that was about, and I do not reckon he does.' There were two beds in the home that we occupied. There were two children besides myself there. The two children slept in the other bed. Van Smith and myself slept in the other bed. We have been continuously sleeping together during the past 12 months.”
[2] We have recently had the question before us whether or not, under such circumstances as here shown, more than one act of intercourse could be offered in evidence. Por a discussion of this question, and the decisions of this and other states, see the case of Battles v. State, 140 S. W. 786, opinion on motion for rehearing. The court did not err in permitting all acts of intercourse to be shown in this case.
[3] However, we are constrained to agree that the case should be reversed and remanded. It will be noticed that in the testimony of the prosecuting witness she states that all the acts of intercourse took place at night; that “there were two beds in the home that we occupied. The two children slept in one bed. Van Smith and myself slept in the other bed. We have been continuously sleeping together during the past 12 months.” The defendant denied ever having had sexual intercourse with his daughter, and denied having slept in the same bed with her. The defendant filed a motion to continue the case on account of the absence of his son, Claude Smith, who was temporarily in Oklahoma. The motion was overruled, and defendant telegraphed his son to come; but the son did not arrive until the verdict was rendered. This son is 17 years of age, and in affidavit filed he swears that during all his life, until about four months before the trial, he had resided continuously with his father; and that he knows that the defendant and the prosecuting witness, Mabel Smith, never at any time slept together, as alleged by her. This testimony, if true, would have broken down the state’s case, and, as this was the first application for a continuance, it should have been granted. Especially is this true in this case; appellant not being able to employ attorneys to defend him, but the attorneys who have vigorously prosecuted this appeal doing so under appointment of the court. The appellant was indicted October 28th, counsel appointed to defend him on October 81st, and the case called for trial November 11th. It appears that this son and other witnesses named in the application were beyond the state lines temporarily, and while, perhaps, an effort ought to have been made to secure their depositions, yet, in view of the materiality of this testimony, if true, that appellant is shown to have made efforts to secure the attendance of his son, and he had reasonable expectation of doing so, and the son was prevented by sickness from attending court earlier than he did, and the further fact that he had no attorney to represent him until the court made an appointment, we are inclined to think the ease should be reversed and remanded, but not upon the grounds stated in the opinion of the presiding judge.