The conviction is for rape, and punishment fixed at confinement in the penitentiary for a period of eight years. The prosecutrix was a girl under fifteen years of age. Her testimony, together with some corroborating circumstances, supports the State's case, and constitutes sufficient evidence to justify the conviction. No complaint is made of the charge of the court.
In Bills of Exceptions Nos. 1 and 2, complaint is made of the action of the court in permitting proof that at an examing trial the appellant was held under bail to await the action of the grand jury; that while there was no forfeiture of the bail bond, the appellant did not appear upon the return of an indictment against him, but went to a point in the State of Kansas, and was there arrested. The trial court regarded this evidence as admissible as tending to establish flight. The decided cases appear to support the court's ruling. Sorrell v. State, 74 Texas Crim Rep., 505, 169 S.W. Rep., 304; Hart v. State, 22 Texas Crim. App., 567; Gent v. State, 57 Tex.Crim. Rep.; Brown v. State, 57 Tex.Crim. Rep.; Gilliland v. State, 24 Texas Crim. App., 528. In Sorrell's case it was held that the judgment of forfeiture would not have been admissible, but the fact of the absence of the accused, in disobedience of his bail bond, was held admissible. If the correctness of the ruling is questionable, it was harmless, for the reason that the appellant's witness Kennedy, on cross-examination, testified without objection: "Mr. Cook made bond after the examining trial. He then skipped, and went to Kansas. Mr. Seale brought him back to Dallas."
It is claimed that a juror, on his voir dire, admitted that if he was selected he would enter the jury box with "a feeling against the defendant." A challenge for cause was overruled, and the juror excused upon a peremptory challenge. The action of the court in refusing to sustain the challenge for cause, is complained of in a bill which is qualified by the statement that the appellant failed to exhaust his challenges, and that no improper or prejudiced jurors were forced upon him. On the subject, Mr. Branch, in his Ann. Texas Penal Code, sec. 543, states the rule:
"The refusal to sustain a good challenge for cause is not reversible error if the jurors subject to the challenge did not sit on the trial of the case and no other objectionable juror was forced on the defendant."
Loggins v. State, 12 Texas Crim. App., 72; Kramer v. State,34 Tex. Crim. 84; Carter v. State, 45 Tex.Crim. Rep.. It has also been held that unless the bill of exceptions shows that the defendant *Page 662 exhausted his peremptory challenges, the point is not available on appeal. Burrell v. State, 18 Tex. 713, and other cases cited in Mr. Branch's work, in the section mentioned. See also Mays v. State, 50 Tex.Crim. Rep..
The prosecutrix testified that when she advised appellant of her pregnancy, he suggested that she "go with some other boy, and lay it on him." On the trial, he introduced the witness Maillot, a youth about seventeen years of age, who testified that in conversation with the injured girl she "said something to me about being pregnant; said I had something to do about it." On cross-examination he said that he related this to the appellant on the next day, appellant being connected with a stepfather of the witness in business. He also testified that he never had anything to do with the girl. On the issue thus made, appellant introduced the witness Henry Cook, who said that he talked with the prosecutrix, Ruby Mayben, on the previous Fall, at the home of Mrs. Nitsche; that she told him that she was in a family way, and that Charley Maillot was the cause of it. It appears from the bill that he testified that he had related the matter to Mrs. Nitsche, who was the mother of Charley Maillot. The State subsequently called Mrs. Nitsche, and she denied that Henry Cook had related the matter referred to to her. The action of the court in admitting this impeaching testimony is challenged upon the ground that it infringes the rule against impeaching a witness upon an immaterial matter. We are referred to no authorities supporting the view advanced by the appellant that the court's action was in violation of the rule stated. The witness having claimed that the admission by the State's witness was made to him at the house of Maillot's mother, and that he discussed the matter with the mother, we think the bill does not show that the court committed error in receiving the mother's testimony contradicting the appellant's witness.
Finding no error in the record justifying a reversal, the judgment is ordered affirmed.
Affirmed.