McCulley v. State , 103 Tex. Crim. 126 ( 1925 )

Appellant was convicted in the District Court of Briscoe County of rape, and his punishment fixed at five years in the penitentiary.

There were no exceptions reserved to the charge of the court, nor to the introduction or rejection of any testimony. The record presents six bills of exception taken to the refusal of the trial court to strike from the record various parts of the testimony which had been admitted without objection. We do not think the action of the court in refusing the request of appellant in this regard erroneous. The evidence in each instance was admitted without objection, and was pertinent.

There is a bill of exceptions complaining of the argument of the district attorney to the effect "that if in after years prosecutrix should marry and have a home and children, she would be looking at them and wondering where this child was," meaning the child born to prosecutrix as the result of the alleged intercourse between herself and appellant. We see no reason why this was not fair argument. The charge against appellant was statutory rape, and the claim of prosecutrix was that a child was born as the result of the intercourse had by her with the accused. Proof that a child was born to her about the ordinary length of time from the date of her alleged criminal connection with appellant, was proper and the argument such as here referred to was a fair discussion of the matter. Rhea v. State, 275 S.W. Rep. 1023.

Complaint is made of the refusal of a continuance. The application wholly fails to show any diligence, nor was there any affidavit of the absent witness attached to the motion for new trial. In its absence we might observe that we do not believe the absent testimony such as that if it had been present, there would have been any likelihood of a different verdict.

The testimony, in short, consisted only of that of the prosecutrix, the father of the prosecutrix, and the woman in whose house the child was born, these being state witnesses. For the defendant only two witnesses appeared, both of whom gave testimony indirectly tending to affect the reputation of the prosecutrix.

The law of the case having been submitted fairly to the jury, and it being their province to pass on the credibility of the witnesses and the weight to be given their testimony, and there being evidence in the record sufficient to support the conclusion reached, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.