This is a conviction for rape, the punishment being assessed at ten years.
1. There are no bills of exceptions incorporated in the record. Appellant urges two grounds for reversal which can not be considered in the absence of bills of exceptions. The first is to the competency of the witness, Emma Grandberry, the prosecutrix, and the second is to the fact that the petit jury who tried appellant had been drawn at the May term for the November term of the court. With reference to the competency of the testimony of the girl, it is sufficient to say that she was tested as to her competency and the court decided adversely to appellant, and her testimony went before the jury. Appellant reserved no exception, and, therefore, can not be heard to complain. In regard to the second question, the record shows an agreement in the statement of facts that the jurors who tried appellant were selected at the May term of the court, and that he was tried at the following November term. Appellant went to trial without objection, accepted the jury, reserving no exception. There was no challenge to the array, nor was there an exception reserved to any juror who sat upon the trial. This does not come within the rule laid down in the case of Woolen v. State, Mayfield v. State, and Whiten v. State, three cases decided at the present term of court. The three cases mentioned were from Harrison County, as is this case. Those cases discussed the legality of the indictment, because it was returned by grand jurors selected as the petit jurors were selected in this case, but timely objection was urged, and the indictment was held vicious under the authorities and line of reasoning set forth in those cases. Under the circumstances of this case, we are of opinion those cases are not applicable. If appellant had objected to these jurors or to the array, before the selection of the jury, his case would have presented a very different proposition. We, therefore, hold that even had the matter been presented by bill of exception, *Page 421 we could not reverse, inasmuch as appellant accepted the jury without objection and only suggests it after trial in the agreed statement in the statement of facts.
2. The court gave the following charge: "Penetration only is necessary to be proved by the State upon a trial for rape, but it is necessary that the evidence show beyond a reasonable doubt that there was penetration; that is to say, that the private parts — the female organ — of the female alleged to have been raped, was penetrated or entered into by the male member or organ of the accused. Beyond the mere fact of penetration you are not required to go, as to ascertain how deep or how far the penetration or entry extended or whether or not there was emission of semen." This charge trenches closely upon forbidden ground and had the indictment alleged, either force, threats or fraud, would have been fatal to this conviction. The indictment, however, alleges the rape upon a girl under fifteen years of age and does not allege that this was accomplished by either force, threats or fraud. Therefore, the case does not come within the rule laid down in McAvoy Case, 41 Tex.Crim. Rep., and cited by appellant; nor within the rule laid down in the Cromeans Case, 59 Tex.Crim. Rep.. These cases are cited in support of this proposition. In this case the evidence is clear on the part of the prosecutrix that appellant had actual intercourse with her and penetrated her, she says, a distance the length of her finger. Two physicians examined her and declared that she had been penetrated. We are of opinion that this charge, while erroneous, is not sufficiently so in this case to require a reversal of the judgment.
3. It is contended that the court erred in presenting the issue of rape to the jury and that he nowhere defined and told the jury the meaning of the term "assault"; and did not define and give the meaning of the word "force" in connection with rape. The court did give the definition of assault, but did not define force. It is contended that the court erred in not defining force. This is not correct in this character of case. The girl was under fifteen years of age and the element of force does not enter into the case. We are cited to the McAdoo Case. 34 S.W. Rep., 955, which is also reported in 35 Tex.Crim. Rep.. In the McAdoo case it was necessary to give the definition of force. That was under a different article and alleged an attempt to commit rape. All of the decisions as well as the statutes recognize and keep separate a distinction between assault to rape and an attempt to rape.
4. In the other questions suggested we find nothing of sufficient importance to discuss. The judgment is affirmed.
Affirmed. *Page 422