By the motion for rehearing the appellant for the first time calls our attention to what she claims to be a fatal mistake, in that she claims that the affidavit on which the information was based was made on February 3, 1910, while the information was filed on February 2, 1910. There is filed with the record a properly certified copy of both the affidavit and information with the file marks thereon showing that both were made and filed on February 3, 1910. So that there is nothing in appellant's contention on this point.
The only other ground appellant sets up in the motion for rehearing is that this court erred in the original opinion herein rendered in declining to consider her first bill of exceptions. This court did that in the following language: "As presented, the bill of exceptions, tested by its recitals, or read in the light of the entire record, is insufficient in that the time of the matter sought to be shown does not appear to be of such date as to render the testimony admissible."
The appellant now contends vigorously that the court was in error in so holding, and claims that the said bill of exceptions shows that the period of time which this evidence covers was from September 6, 1909, down to the very moment of the question.
In order to show the question more clearly we quote in full said bill of exceptions, as follows:
"Be it remembered, That upon the trial of the above entitled and numbered cause, the defendant's witness, W.C. Turner, being upon the stand, defendant proposed to prove by said witness the following facts, which, if permitted to do so, the witness would have testified to, to wit:
"Q. Now, Mr. Turner, since that time have you had occasion to go to defendant's house or about her house since about the 6th of September? A. Twice, I think; or maybe three times. Q. For what purpose did you go there? A. Well, the first time I went there was to see Mabel on some business matters. Mr. Parker, for the State: I object to what his purpose was. The Court: I sustain the objection. Mr. McLean: We offer to prove by this witness and other *Page 253 witnesses that they have been there at defendant's house frequently during this time, and that they have watched the house and have seen no man come in and go out, and that they have been in said house a great many times and that they saw nothing improper about the place from the time this order was passed. And the State by her prosecuting attorney objected to said testimony, which objection was sustained by the court, and the defendant was not permitted to prove the facts by said witness. That said witness would have testified that he had been there, at defendant's house frequently during the time inquired about and that he watched the house as an officer, and that he had been in said house a great many times, and that he had seen no man come in or go out of said house, and no woman come in or go out of said house, nor men or women together go in or come out of said house, and that he had not seen anything that was improper from the time the order was passed.
"That said testimony was material to the proper defense of this defendant, to which action and ruling of the court, in excluding said evidence from jury, the defendant then and there, at the time, by counsel excepted, and she now tenders this her bill of exceptions and asks that the same be allowed, signed and filed as a part of the record in this case, which is accordingly done."
The affidavit and complaint both charge that the offense was committed on February 2, 1910. The evidence for the State fixes and limits the time of the commission of the offense to February 2, 1910; even the evidence of the general reputation of the house was limited strictly to the period of time from December 2, 1909, to February 3, 1910. Certainly, appellant can not claim with any show of reason that such proof as was offered by her would be admissible for any time between September 6, 1909, and December 3, 1909, nor from February 3, 1910, to the date of the trial at which the said question was asked and the testimony offered, February 26, 1910. In other words, no such testimony as offered was admissible unless it was confined within the period of time from December 2, 1909, to February 3, 1910. Perhaps it should have been confined to the very period of time the State fixed by its testimony, February 2, 1910. The testimony excluded could have been just as well for the period of time from September 6 to December 2, 1909, and from February 3 to February 26, 1910, as for said period of time between December 2, 1909, and February 3, 1910. The object of the bill is to show this court that the testimony fixed the period of time when the testimony was admissible. Clearly this bill does not do this, because, as stated above, it would just as clearly show that it was for the other times above stated as for the period of time claimed by the appellant. In addition to this, we take it that the claim of what the witness would testify is a mistake. The witness himself had just testified, as shown by the bill, that since September 6 (1909), up to the time of the trial, February 26, 1910, he had had *Page 254 occasion to go to defendant's house or about her house, "Twice, I think; or maybe three times," and we take it that he would not have immediately changed his testimony, as claimed by this bill, to show that he had been at defendant's house "frequently" from September 6, 1909, to the time he was testifying, February 26, 1910, and that "he watched the house as an officer, and that he had been in said house a great many times, and that he had seen no man come in or go out of said house, and no women come in or go out of said house, nor men or women go in or come out of said house, and that he had not seen anything that was improper from the time the order was passed."
But even to concede that the witness would have so changed his testimony as to have testified what the bill claims he would have testified, still this bill clearly does not show but that this witness' testimony would have been for one or the other of the periods from September 6, 1909, to December 3, 1909, or from February 3, 1910, to February 26, 1910, appellant claiming, as shown by her own contention, that this testimony embraced the period from September 6, 1909, to February 26, 1910. Hence, we conclude, as this court did in the previous opinion, "as presented, the bill of exceptions, tested by its recitals, or read in the light of the entire record, is insufficient in that the time of the matter sought to be shown does not appear to be of such date as to render the testimony admissible."
The motion for rehearing will be overruled.
Overruled.