Conviction in District Court of Knox County of rape; punishment fixed at five years in the penitentiary.
Prosecutrix swore to an act of intercourse with appellant at his place of business on March 9th. She was not quite fifteen years of age at the time. She said a Mrs. Burroughs was present, and that at first she did not agree to have intercourse with appellant, and when he would turn the lights off in the building she would turn them on. The act occurred after 12 o'clock at night. The Burroughs woman corroborated prosecutrix. Elliott, a night watchman, said that his attention was attracted by hearing the talking of a man and one or two women in appellant's place of business at a late hour of the night. The lights would be turned off and then on and off again. He tried the doors but found them locked. He watched and saw appellant, the Burroughs woman and prosecutrix come out. It was about 1:20 a. m. A Mr. Moore was with Elliott and told substantially the same story.
Appellant took the witness stand in his own behalf and admitted that the Burroughs woman and prosecutrix were at his place on the night mentioned from about 11:30 until after 1 o'clock. Mr. Elliott was called to the stand by the state in rebuttal and testified that about twenty minutes after the parties came out of appellant's place on said night, prosecutrix told him that appellant had intercourse with her.
There are four bills of exception. The first asserts error in the refusal of the trial court to allow appellant to prove by a Mrs. Henderson that she was not present at any time in February preceding the March mentioned, at appellant's place of business when he took prosecutrix into a side room and had intercourse with her. This testimony was properly rejected. *Page 545 The state had proved by prosecutrix only the act of March 9th, on which it relied for a conviction. In appellant's cross-examination he asked prosecutrix if she had any other connection with him at any other time, and she said she had, and detailed, in response to appellant's questions, the surroundings and settings of an act which she said took place in February. She said that Mrs. Henderson was picking turkeys at appellant's place when he took prosecutrix into a side room and had intercourse with her in February. The attempted impeachment by Mrs. Henderson was on an immaterial and collateral matter which had been brought out by appellant himself on cross-examination. Drake v. State, 29 Tex.Crim. App. 270; Wilson v. State, 37 Tex.Crim. Rep.; Brittain v. State, 47 Tex.Crim. Rep.. See also authorities cited in Sec. 165, Branch's Annotated P. C.
Bill of exception No. 2 was reserved to argument of state's attorney which, without setting it out, seems entirely within the record and not improper.
Bill of exception No. 3 was taken to the rejection of testimony showing that prior to her alleged act of intercourse with appellant, prosecutrix had intercourse with another person. The charge here is rape by consent. In a case like the one before us this testimony would be inadmissible. Knowles v. State, 44 Tex.Crim. Rep.; Whitehead v. State, 61 Tex. Crim. 567.
The fourth bill of exception presents complaint of the refusal of appellant's motion for new trial based upon the proposition of newly discovered testimony. The testimony of Mrs. Henderson was not newly discovered. She was present at court and was not interviewed. Acton v. State, 282 S.W. 805; Fisher v. State, 30 Tex.Crim. App. 502; Powell v. State,36 Tex. Crim. 377. The affidavits of other witnesses whose testimony was claimed to be newly discovered, were attached to the motion and showed that the new testimony was pertinent only for impeachment purposes. None of the same would have been admissible as original testimony. The state traversed the motion and the court heard testimony. We think the action of the court in refusing the motion in accord with the authorities. Barber v. State, 35 Tex.Crim. Rep.; Holt v. State, 39 Tex.Crim. Rep.; Morris v. State, 57 Tex. Crim. 163; also authorities cited in Branch's Annotated P. C., Sec. 202. Cottrell v. State, 237 S.W. 928, was relied on by appellant, and also Lusty v. State, 261 S.W. 775. An inspection of the record shows that in this case the state did not rely alone on the testimony of prosecutrix, nor was there any evidence introduced as to a physical examination made of her. She was abundantly *Page 546 corroborated, and the question of the sufficiency thereof was wholly for the jury. In this connection we also note that the lowest penalty was given the appellant.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.