Conviction in district court of Mills county of assault to rape; punishment, 5 years in the penitentiary.
There are six bills of exception and in their discussion will appear enough of the facts. The indictment is not subject to the attack made upon it; viz., that it stated the age of the assaulted female as being under 15 years, appellant contending that the allegation should have been under 18 years. This is settled against appellant in the cases of Young v. State, 89 Tex. Cr. R. 230, 230 S. W. 416, and Tinker v. State, 95 Tex. Cr. R. 143, 253 S. W. 531.
Robert Jordan, state witness, testified that he was with appellant on the night in question at a schoolhouse where a singing convention was being held; that two girls left the schoolhouse and started toward a toilet some 100 yards distant; that appellant looked after the girls as they went away and said, “That would be a good place to get a piece of tail.” The assault occurred very shortly afterward at a point near said toilet to which prosecutrix and another girl had gone. The learned trial judge appends to the bill of exceptions presenting complaint of this testimony the statement that the evidence as a whole disclosed that reference was had to the two girls in question. No *890objection is made to this qualification. Tbe case is one of circumstantial evidence. Tbe assault was made in tbe nighttime, and no one was able to positively identify tbe assailant. We are of opinion that tbe testimony was admissible. Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758; Warren v. State, 96 Tex. Cr. R. 627, 259 S. W. 575; Bethune v. State, 49 Tex. Cr. R. 166, 90 S. W. 1014.
Bills of exception Nos. 3 and 4 set forth objections to testimony as to similarity of tracks.- Prosecutrix testified that while struggling with her assailant bis hat fell off, and that be left when parties came running down. Witnesses swear that they saw appellant come back to tbe place where the girl was and pick up a bat. A Mr. Tolliver said be was shown tbe place where tbe struggle occurred, by tbe girl, and saw on tbe ground evidences of a wrestle and saw tracks leading from tbe toilet. Another witness testified that when be beard tbe little girl scream be ran down there and saw tbe bulk of some one, who seemed to have on a white shirt, making a circle back toward tbe road. Tol-liver further testified that tbe next morning be, in company with Constable Savoy, went to tbe scene and followed tbe tracks. Mr. Savoy testified that be followed tbe tracks from tbe place of tbe occurrence past tbe toilet, back east across a fence and toward tbe road and then back to tbe place of tbe trouble. This witness said be measured tbe tracks with a stick and by comparison with bis own shoe. He said that tbe same day, but later, be saw appellant alone in a car; when appellant observed them, be fled and tbe officers followed him 5 or 6 miles but stopped because of a blow-out. Tbe witness said that a little later be followed in tbe direction taken by appellant and found tbe latter’s car in a mud bole in a ditch and saw where be bad gotten out of tbe car and made tracks going over a fence and out through a pasture. He said be measured these tracks with tbe same stick and by comparison with bis shoe, and they were, in bis opinion, identical with those observed by him at tbe place of the assault. Tbe giving of testimony upon tbe similarity of tracks is discussed" in Mueller v. State, 85 Tex. Cr. R. 346, 215 S. W. 93, and Israel v. State, 89 Tex. Cr. R. 382, 230 S. W. 984, 15 A. L. R. 453, tbe holdings therein being adverse to appellant’s contention. See, also, Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 346; Boyman v. State, 59 Tex. Cr. R. 23, 126 S. W. 1142; Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847. Mr. Tolliver said that tbe girl showed him tbe place of the assault, but that for himself be observed tbe disturbance of tbe condition of the ground and the tracks. We think neither bill shows error.
Appellant has a bill of exceptions complaining of tbe testimony of tbe officers that be fled, tbe contention seeming to be that it is not shown that be knew a complaint bad been filed against him or that be was charged with any offense. Plight is a circumstance of guilt, and tbe matters set out in tbe objection, we thinik, go more to tbe weight than to tbe admissibility of tbe testimony. Appellant cites the ease of Steed v. State, 101 Tex. Cr. R. 525, 276 S. W. 281, on tbe proposition of tbe inadmissibility of tbe testimony regarding tbe similarity of tracks. Said case is based on tbe case of Smith v. State, 45 Tex. Cr. R. 405, 77 S. W. 453, which was discussed at length in the case of Mueller v. State, supra. Tbe opinion is expressed that said authority is not opposed to what we have here said.
Being unable to agree with tbe contentions made, the judgment will be affirmed.