The offense is rape, and the punishment is eight years in the penitentiary.
The prosecutrix was sixteen years old at the time of the alleged offense and she testifies that the act of intercourse took place at the appellant's home in the night time while she and her father and mother and other members of her family were spending the night and that it occurred in a room on a bed on the floor that was being occupied by herself and two small children. That appellant's wife was on a bed within a few feet of her and her father and mother were in an adjoining room with an open door between, and if awake were in sight of her and appellant. The appellant seriously contends that the evidence is insufficient to support the verdict. We have given it most careful consideration because of its rather unusual nature. We have reached the conclusion deliberately that the testimony under the entire record is sufficient. In addition to the girl's testimony there were other circumstances detailed in the record tending to support the state's case.
For instance, the appellant's wife testified that the prosecutrix spent the night at her house in July of the year when the offense is alleged to have happened in April and that she asked the witness to make her bed on the gallery and witness did, and that about 10:30 o'clock the prosecutrix got up and came to the appellant's bed and asked him to come and sleep with her which he refused to do. Similar testimony as to this transaction in July was given by the appellant himself. The prosecutrix also testified that the appellant gave her medicine and asked her to take it for the purpose of producing an abortion. The state offered in evidence one of the receptacles or boxes in which prosecutrix claimed this medicine was sent and prosecutrix claimed that this box contained a piece of paper on *Page 332 which a pattern was drawn and the state offered this pattern in evidence and proved by the sister of the wife of the appellant that she drew this pattern herself and gave it to appellant's wife. In addition to this, the proof shows that appellant frequently visited at the home of prosecutrix and that he continuously left his shaving paraphernalia there and did his shaving at her house. We think under the facts detailed above the jury was warranted in believing that the prosecutrix's testimony was credible. In any event, it presented an issue of fact that was properly left to the jury for its solution and we find nothing in the record that would warrant us in saying that the jury's verdict is without support in the legal evidence.
Appellant also contends that the court erred in permitting the state to ask the wife of the appellant if she remembered having found some loud-smelling poison medicine in her yard in October, and that the children got hold of it. The witness first answered that she remembered finding some loud-smelling medicine but did not know whether it was poison or not and upon objection from the appellant the court excluded the entire question and answer from the consideration of the jury. The appellant had placed his wife on the stand and had asked her if she had ever attempted to produce an abortion and had also had to testify that there was no medicine on their place that she took to cause an abortion and that her husband had never brought her any medicine for that purpose and that he did not keep any on the place to keep her from having children and that he did not ask her not to have any. The appellant having gone into this matter in the manner above indicated, it is not clear to us that the state was not within its right in pursuing the matter and asking her about the medicine found in the yard. In view of the fact, however, that the court excluded the entire matter from the jury, we think it clear that the matter does not present reversible error.
There are many bills of exceptions contained in the record to the argument of the private prosecutor in the case. In every instance save two, appellant's objections to the argument were sustained and the jury was instructed not to consider same. It was also true that in every instance the bills of exceptions were very meagre as showing the surroundings under which the argument was made. We have carefully examined each statement objected to and think it clear that in no instance can the argument that was excluded by the court be said to have been so abusive as to prejudice the case or to have introduced *Page 333 before the jury any facts which were not already in evidence. On the contrary, they were more or less lurid appeals to the jury to protect the virtue of the young women of Van Zandt County. In view of the fact that the court sustained objections to each of these arguments and instructed the jury not to consider them and in view of the further fact that a penalty that is not deemed excessive under the facts in this case was assessed by the jury, we decline to say that the arguments excluded were of such a prejudicial nature as to justify us in reversing the case.
There are two bills of exceptions taken to the argument which it is necessary to consider separately. The appellant complains because the private prosecutor made the following argument: "Your verdict is not so much to punish him as to deter others." This bill is qualified by the court with the statement that the argument actually made by the attorney was that the object of the law is not only to punish the guilty but to deter others from committing like crimes. The argument as explained by the court states a correct legal proposition and the statement of it before the jury would not constitute reversible error in this case.
By another bill, the appellant complains of the action of the private prosecutor in referring to the defendant as "this lecher, rapist and seducer." The court qualifies this bill by stating that the attorney really said "the facts in this case, if believed, make out the defendant a seducer and rapist of the purest flower of womanhood." As explained by the court this argument was not erroneous under the facts of this case.
Complaint is also made at the action of the court in permitting the state's counsel to ask many character witnesses the following question: "Do you know the general reputation of the prosecutrix in the community where she lives for chastity and lady-like conduct?" The defendant objected and excepted to this question being answered for the reason that there was no predicate laid for the introduction of this testimony; that it was improperly framed, was not a proper question; that the same was prejudicial, inflammatory and could serve no useful purpose save and except to prejudice the defendant and his defense before the jury; that the question of chastity or ladylike conduct of the prosecutrix was not an issue; that said question was improperly framed, was immaterial and irrelevant, but the court permitted the witness to answer same. The court in explaining this bill states that this testimony was *Page 334 not permitted to be introduced until the defendant had put the prosecutrix's reputation in issue and refers to the statement of facts which shows that said reputation had been put in issue. In oral argument before this court, it was virtually conceded by the appellant's counsel that the question of chastity was perhaps a pertinent inquiry but that the question went too far in that it permitted the state to inquire as to the lady-like conduct of the prosecutrix. It is not necessary to decide in this case as to whether it was proper for the state to ask concerning the lady-like conduct, as the question of her chastity was a proper inquiry and the bills of exception do not single out that part of the question that the appellant claims before this court was improper but the bill objects to the entire question and part of it being clearly admissible, the bill of exception fails to show any error in refusing to exclude the entire question. If appellant desired to save the point that a part of the question was not admissible he should have separated it in his bill of exceptions and leveled his objections at that part of it which he deemed inadmissible. Having failed to do this, and part of the testimony objected to being admissible, his complaint at the court's action will be overruled.
There are various objections urged by appellant to the court's charge but a careful examination of same convinces us that every right that the appellant had was thoroughly protected in the instructions given by the learned trial judge to the jury.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.
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.