Patillo v. State , 131 Tex. Crim. 393 ( 1936 )

CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for five years.

Prosecutrix, Ruby Lee Thompson, testified that in March or April, 1935, appellant had an act of sexual intercourse with' her. She was 13 years of age at the time. Testifying in his own behalf, appellant denied that he had had- any improper relations with prosecutrix. He also introduced witnesses whose testimony raised the issue of alibi.

We deem the evidence sufficient to support the conviction.

Appellant filed an application for a suspended sentence, which was submitted to the jury. In bill of exception No. 2 it is shown that one of the jurors declared in the beginning of his voir dire examination that he might not give fair consideration to a plea for suspended sentence in view of the fact that appellant was a man 60 years of age. Upon further examination said juror testified that he could try the issue of suspended sentence just as fairly as any other issue in the case. He testified further that he had no prejudice against the suspended sentence law. Again, he declared that he would be governed by the evidence and the charge of the court. We are of opinion that there was no abuse of discretion on the part of the trial judge in holding the juror qualified.

In bill of exception 4 it is shown that the district attorney in argument to the jury, used language as follows: “Some people say we have no rape law any more.” Appellant objected to the argument. The court sustained the objection and instructed the jury not to consider the argument for any purpose. We think the bill of exception fails to reflect reversible error.

Bill of exception No. 5 shows that the district attorney, in his closing argument to the jury, used language as follows: “When you go out to consider this case look in the face of your own girl and the girls of your community.” Appellant’s objection to the argument was sustained and the jury instructed not to consider it. Under the circumstances, the opinion is expressed that the bill fails to reflect reversible error.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.