Appellant files a motion for rehearing accompanied by a certified copy of the sentence which, appearing regular, leads us to reinstate his appeal and to decide the case now upon its merits.
We are of opinion that a juror who refuses to answer whether certain business relations with the accused would or would not affect his verdict, would be subject to challenge for cause. However in the case before us there is no showing that as a result of the refusal of the court to sustain the challenge for cause to such juror, any objectionable juror was forced upon appellant.
Complaint of the failure of the court to arraign the defendant, not being made until same was presented in motion for new trial, will be held by us to have been waived.
Appellant complained of the refusal of his applications for continuance. No process for the absent witnesses appears in the record, nor is there any showing of diligence to secure the presence of said witnesses.
The alleged injured female was referred to by all the witnesses as "she" or "her" and the case did not fail because there was no *Page 7 specific statement by any witness that said injured party was a female.
The prosecutrix in this case having testified to a number of acts of carnal intercourse with appellant, it is difficult for us to see how there could be any ground for contending that there was no proof of penetration.
The complaint directed at the indictment because it failed to allege the rape was unlawful, is of no force. The indictment alleged that appellant ravished and had carnal knowledge of the prosecutrix without her consent, and that she was not then and there the wife of appellant. This sufficiently charged that the act was unlawful.
Appellant sought a new trial on the ground of misconduct of the jury. Affidavits pro and con were presented to the court who found against appellant's contention. Many authorities might be cited supporting the legal proposition that a conflict upon facts of this kind is primarily for decision of the trial judge, and unless there appears an abuse of his discretion, this court will not review his action.
There is a bill complaining of testimony showing the exchange of notes between appellant and prosecutrix. Matters of inducement and a showing of increasing intimacy between the parties prior to and leading up to the consummation of the act would be plainly admissible.
Appellant introduced as a witness his father-in-law, and when the witness was asked on cross-examination by the State if he was not so related to appellant, a bill of exceptions was reserved to the action of the court in compelling the witness to answer that he was appellant's father-in-law. The testimony tended to show bias or interest and was admissible.
An effort was made on the part of appellant, in connection with his motion for new trial, to show that certain jurors were influenced in their verdict by the fact that appellant did not take the witness stand. The trial court correctly refused to permit such testimony. A juror should not be permitted to impeach his own verdict.
The evidence in this case amply supports the verdict. Upon the proposition that if she would submit herself to him he would get a divorce from his wife and marry her, appellant seems to have induced prosecutrix, a girl fifteen or sixteen years of age, to submit to a number of acts of intercourse with him. The jury gave him the lowest penalty.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 8
ON MOTION FOR REHEARING.