The opinion
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
We were in error in our opinion in stating that the trial court had qualified a certain bill of exception. As part of a bill of exception, appellant had set up another bill of exception taken upon a prior trial, which included bill showed to have been qualified by the court. In the writing of the opinion on this hearing here, attention was attracted to the qualification to the included bill, and it was stated in the opinion as a qualification to the bill now before us. We think, however, the matter of no materiality.
All of the matters presented before the trial court as affecting the grand jury which returned the indictment herein, were reproduced facts which were before the court at the time of the trial of this case when same was appealed and by us reversed. The testimony claimed to support discrimination against the Mexican race in the drawing of the grand jury, was the same testimony which was before the trial court and this court upon the former appeal. We think our opinion holding that the matters were decided and correctly decided upon the former appeal, is correct. We might add, however, here that we think the evidenc wholly fails to show any discrimination against the Mexican race in the formation of the grand jury that returned this indictment.
We are not impressed that the court below should have charged upon the issue of aggravated assault. The testimony seems clear and uncontradicted that appellant was guilty of the offense here charged in that he castrated the prosecuting witness. We know of no principle of law that Would reduce. the offense of castration to some lower degree of assault because of the anger, rage or excitement of the accused at the .time.
Appellant again raises the supposed error of the refusal of the court to permit him to ask the prosecuting witness questions relative to his affairs -with other women than the daughter of appellant, and to show by testimony that prosecuting witness had been intimate with such women,
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or that he had attempted to induce them to submit themselves to him. We think such testimony has no proper place in this record.
The motion for rehearing will be overruled.
Overruled.