HAWKINS, Presiding Judge.
The offense is rape. The punishment assessed is confinment in the State penitentiary for a term of ten years.
Appellant brings forward many complaints which he claims present reversible error. His first contention is that the evidence is insufficient to sustain his conviction. To this we are unable to agree.' The State’s evidence, briefly stated, shows that on the evening of July 27, 1945, the prosecutrix, a girl about fourteen years of age, in company with a girl friend of about the same age, went to the town of DeKalb to attend a picture show. After the conclusion of the show, they went to a cafe and bought some candy. While there they met some boy with whom they conversed for a few minutes, and then started to walk home, but before they arrived at home appellant overtook them, stopped his car and said, “You kids get in here. You are not supposed to be out at 12 o’clock at night.” He then told them that he was “the law.” The girls became frightened and complied with his command. After they entered his automobile he drove back toward town and stopped near a gin where he told' the younger of the two girls to get out and look under the gin for her sister while he drove some distance from town with prosecutrix. He finally stopped under a large tree, and had an act of sexual intercourse with her by force and against her will. He then drove to within a block of her home and let her out to walk home. Upon her arrival at home she immediately reported the occurrence to her sister, who notified the officers. The girl was taken to a doctor within a short time after she arrived at home. An examination of her person by the doctor revealed that she had very recently had sexual intercourse with someone. On the night in question the little girl, accompanied by officers, went and pointed out to them the place where she had been criminally assaulted. The next day the sheriff went to the place so pointed out and there found tracks of an automobile and made a plaster cast thereof. A few days later when appellant came to town and parked his car the officers had firemen sprinkle the ground around his car and when he drove away they made a. plaster cast of the car tracks. These casts, so made, were compared with the others and proved to be alike in every respect.
Appellant’s defense was that of an alibi, which he supported by his own testimony and that of his wife. He accounted for his car tracks under the tree by testifying that later in the afternoon on the day in question he and a friend drove out there under the tree and drank some whisky. He was supported upon this point by the testimony of his friend, Dalby.
It will be noted from the foregoing brief statement of the salient facts proven on the trial that an issue was raised which the jury decided adversely to appellant. The jury saw the witnesses and heard them testify; they were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. This court would not be justified in disturbing the verdict under the circumstances here present.
By bill of exception number one appellant complains of the denial of a continuance based upon the absence of the witness Herman Ballard. It is stated in the application for continuance that this witness had been served with process as a witness, and had on previous occasions been present in court in obedience to such process. It is averred in the application for continuance the witness was then temporarily in the State of California. Appellant’s defense was that of alibi. It may be stated that the absent witness’ testimony upon that issue was material, without here setting it out in detail. The application contains the following averments. That on January 1, 1946, this case was set down for trial on January 17; that on January 7 appellant learned for the first time that the witness was not in Bowie County, but was probably in Richmond, California; that on January 8 appellant wired witness at Richmond, California at the address where witness was supposed to be, advising him of the setting of the case for January 17, and that appellant desired his presence and would pay the expenses of witness, but received no reply to said wire; that about January 10 the case was postponed to February 13; that on January 10 appellant again wired the witness of" the new setting, but still received no reply; that appellant continued his efforts to locate the witness and on January 24 learned that witness was at Indio, California, and immediately wrote witness a letter telling him when the case was set for trial, and again promising to pay witness’ expenses; that on February 5 appellant received a letter from witness, the contents of which is not stated; that on February 8 appellant wired said witness that the case would go to trial on February 13; that on February 12 appellant received a telegram from witness saying he had just received the wire which had been sent him on February 8, and that it would be impossible for witness to reach court in time for the trial.
To the bill of exception complaining of the denial of the continuance the trial court attached the following qualification, which was accepted without objection, and same is binding on appellant:
“The term of court at which this case was tried was the January Term, 1946, of the Fifth Judicial District Court, which term opened on January 7, 1946, at the court house at Boston, Texas. On the first day of this term, January 7, 1946, the court announced to the State’s attorney and to the private prosecutor of this case and to the attorneys for the defendant, that he was going to set the case and was thereby setting the case for the 17th day of January, 1946, at 9 o’clock A. M.; and the court would order a special venire drawn, pursuant to law for the 17th day of January. At the time of this announcement, attorneys for the defendant vigorously protested that the 17th day of January was too early in the term, and that they had a witness to-wit, H. L. (Herman) Ballard, who was then in California and they would like to take the deposition of the said witness and would not have sufficient time to-do so if the case was set for the 17th of January. Private prosecutor for the State announced at the same time, which was on January 7, that he would be willing to waive all formalities, notices, etc., and would cross the interrogatories immediately, and the case was allowed to stand for setting on the 17th day of January. However, between the' 7th day of January and the 14th day of January, attorneys for the defendant again requested the court to postpone the case to a date later in the term; and on motion of defendant on the 14th day of January, 1946, the case was postponed until the 13th day of February, 1946, attorneys for the defendant stating that the motion to postpone was made in order that the deposition of the witness Ballard, could be taken. The defendant nor his attorneys of record did not submit any interrogatories to either the District Attorney or the private prosecutor representing the State, nor did they apply for commission or notices to take such deposition of the witness, Herman Ballard; but on the morning of February 13, 1946, announced to the Court that they were not ready because of the absent witness, Herman Ballard, and filed their motion for continuance.
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HAWKINS, Presiding Judge.
The offense is rape. The punishment assessed is confinment in the State penitentiary for a term of ten years.
Appellant brings forward many complaints which he claims present reversible error. His first contention is that the evidence is insufficient to sustain his conviction. To this we are unable to agree.' The State’s evidence, briefly stated, shows that on the evening of July 27, 1945, the prosecutrix, a girl about fourteen years of age, in company with a girl friend of about the same age, went to the town of DeKalb to attend a picture show. After the conclusion of the show, they went to a cafe and bought some candy. While there they met some boy with whom they conversed for a few minutes, and then started to walk home, but before they arrived at home appellant overtook them, stopped his car and said, “You kids get in here. You are not supposed to be out at 12 o’clock at night.” He then told them that he was “the law.” The girls became frightened and complied with his command. After they entered his automobile he drove back toward town and stopped near a gin where he told' the younger of the two girls to get out and look under the gin for her sister while he drove some distance from town with prosecutrix. He finally stopped under a large tree, and had an act of sexual intercourse with her by force and against her will. He then drove to within a block of her home and let her out to walk home. Upon her arrival at home she immediately reported the occurrence to her sister, who notified the officers. The girl was taken to a doctor within a short time after she arrived at home. An examination of her person by the doctor revealed that she had very recently had sexual intercourse with someone. On the night in question the little girl, accompanied by officers, went and pointed out to them the place where she had been criminally assaulted. The next day the sheriff went to the place so pointed out and there found tracks of an automobile and made a plaster cast thereof. A few days later when appellant came to town and parked his car the officers had firemen sprinkle the ground around his car and when he drove away they made a. plaster cast of the car tracks. These casts, so made, were compared with the others and proved to be alike in every respect.
Appellant’s defense was that of an alibi, which he supported by his own testimony and that of his wife. He accounted for his car tracks under the tree by testifying that later in the afternoon on the day in question he and a friend drove out there under the tree and drank some whisky. He was supported upon this point by the testimony of his friend, Dalby.
It will be noted from the foregoing brief statement of the salient facts proven on the trial that an issue was raised which the jury decided adversely to appellant. The jury saw the witnesses and heard them testify; they were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. This court would not be justified in disturbing the verdict under the circumstances here present.
By bill of exception number one appellant complains of the denial of a continuance based upon the absence of the witness Herman Ballard. It is stated in the application for continuance that this witness had been served with process as a witness, and had on previous occasions been present in court in obedience to such process. It is averred in the application for continuance the witness was then temporarily in the State of California. Appellant’s defense was that of alibi. It may be stated that the absent witness’ testimony upon that issue was material, without here setting it out in detail. The application contains the following averments. That on January 1, 1946, this case was set down for trial on January 17; that on January 7 appellant learned for the first time that the witness was not in Bowie County, but was probably in Richmond, California; that on January 8 appellant wired witness at Richmond, California at the address where witness was supposed to be, advising him of the setting of the case for January 17, and that appellant desired his presence and would pay the expenses of witness, but received no reply to said wire; that about January 10 the case was postponed to February 13; that on January 10 appellant again wired the witness of" the new setting, but still received no reply; that appellant continued his efforts to locate the witness and on January 24 learned that witness was at Indio, California, and immediately wrote witness a letter telling him when the case was set for trial, and again promising to pay witness’ expenses; that on February 5 appellant received a letter from witness, the contents of which is not stated; that on February 8 appellant wired said witness that the case would go to trial on February 13; that on February 12 appellant received a telegram from witness saying he had just received the wire which had been sent him on February 8, and that it would be impossible for witness to reach court in time for the trial.
To the bill of exception complaining of the denial of the continuance the trial court attached the following qualification, which was accepted without objection, and same is binding on appellant:
“The term of court at which this case was tried was the January Term, 1946, of the Fifth Judicial District Court, which term opened on January 7, 1946, at the court house at Boston, Texas. On the first day of this term, January 7, 1946, the court announced to the State’s attorney and to the private prosecutor of this case and to the attorneys for the defendant, that he was going to set the case and was thereby setting the case for the 17th day of January, 1946, at 9 o’clock A. M.; and the court would order a special venire drawn, pursuant to law for the 17th day of January. At the time of this announcement, attorneys for the defendant vigorously protested that the 17th day of January was too early in the term, and that they had a witness to-wit, H. L. (Herman) Ballard, who was then in California and they would like to take the deposition of the said witness and would not have sufficient time to-do so if the case was set for the 17th of January. Private prosecutor for the State announced at the same time, which was on January 7, that he would be willing to waive all formalities, notices, etc., and would cross the interrogatories immediately, and the case was allowed to stand for setting on the 17th day of January. However, between the' 7th day of January and the 14th day of January, attorneys for the defendant again requested the court to postpone the case to a date later in the term; and on motion of defendant on the 14th day of January, 1946, the case was postponed until the 13th day of February, 1946, attorneys for the defendant stating that the motion to postpone was made in order that the deposition of the witness Ballard, could be taken. The defendant nor his attorneys of record did not submit any interrogatories to either the District Attorney or the private prosecutor representing the State, nor did they apply for commission or notices to take such deposition of the witness, Herman Ballard; but on the morning of February 13, 1946, announced to the Court that they were not ready because of the absent witness, Herman Ballard, and filed their motion for continuance.
“The court further certifies that in addition to the motion for postponement referred to in the preceding paragraph, that the motion for continuance complained of in this bill of exception was the defendant’s third motion for continuance; the first and second motions of the defendant for a continuance having been granted.”
It will be observed that by appellant’s own admissions in his application for continuance he was advised on January 24 of the witness’ location at Indio, California, and on February 5—
eight days before the trial day — appellant had positive information from the witness by letter of his presence there, but appellant made no effort to take witness’ deposition, although he was beyond the confines of the state, and beyond the power of the court to enforce any process for his presence. Under the circumstances stated we think no error is shown in the court’s action in refusing the continuance.
In bill of exception number three complaint is made because the prosecuting witness testified over objection that she had three brothers and one sister. The objection was that the evidence was not material to any issue in the case. This may be true but we fail to discover what injury could have resulted to appellant. There was evidence from other witnesses not objected to that prosecutrix had a brother and a sister.
In bills of exception numbers four, five, six, seven and eight appellant complains because prosecutrix was permitted to testify that she went with officers back to the place where the rape occurred. There is no complaint that either she or the officer testified as to what she told the officers. It was perfectly admissible for the State to show that she pointed out to the officers the place where she testified upon the trial that the offense was committed, and then to permit the officers to testify that at the place so pointed out to them they observed car tracks which the State undertook to prove were made by appellant’s car. Marta v. State, 81 Tex. Cr. R. 135, 193 S. W. 323; Willman v. State, 92 Tex. Cr. R. 77, 242 S. W. 746; Sellman v. State, 114 Tex. Cr. R. 455, 26 S. W. (2d) 214.
Bills of exception numbers nine and ten complain of certain testimony of one Floyd Flannery. The record shows that on the night of the alleged offense in the town of DeKalb appellant, referring to prosecutrix and her girl companion, asked witness did “he reckon they would do what he did?” and witness told appellant “he wasn’t talking to” witness. Flannery then in the same connection testified, over objection, that appellant asked if witness knew “of any older ones we could get” and was told “No.” The objection went to the inquiry about older girls as being immaterial. It was a part of the same conversation in which appellant referred to prosecutrix and her companion, and appears to throw light upon appellant’s trend of mind.
Bill of exception number eleven is without merit, and is not discussed.
Bills of exception numbers twelve, thirteen and fourteen relate to the same matter. They bring forward complaint because officers testified that prosecutrix pointed out to them a certain place, at which place the officers observed car tracks of which plaster casts were made. No error was committed in the admission of this evidence. Other evidence showed that some few days later plaster casts were made of tracks known to have been made by appellant’s car, which casts corresponded to those taken at the scene of the offense. In this connection we advert to the fact that appellant himself accounts for the tracks of his car being at the place in question by his evidence that in company with his friend Dalby he drove his car to this point on the afternoon prior to the alleged offense and remained there for some time while he and Dalby were drinking whisky. There was no issue as to the presence of appellant’s car at the place, but only as to when it was there.
Bills of exception numbers fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four and twenty-five all bring forward complaints at the cross examination of appellant’s wife, the objections being that the evidence elicited was not germane to the examination in chief, and that appellant had not examined his wife upon the points inquired about on cross examination. All of said bills have been examined in connection with the wife’s evidence given on direct examination. Considered in the light of the trial court’s qualification to some of the bills we are of opinion that each of them reflects that the cross examination was either germane to the examination in chief of the wife, or related to some matter which appellant himself testified to while he was a witness, or was to some trivial matter which was not a communication to her husband and could in no wise be construed as adverse or harmful to appellant.
Bill of exception number twenty-six, when considered in connection with the trial court’s qualification, is not thought to present error.
In our opinion no reversible error is shown.
The judgment is affirmed.