The opinion
ON REHEARING.
May 17, 1911.
HARPER, Judge.
On a former day of this term this case was affirmed. Appellant has filed a motion for a rehearing in which he earnestly insists that the testimony of Emma Latham, as to the act of intercourse is not sufficiently corroborated. That the fact of relationship is corroborated none can doubt, because all the witnesses testify
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that appellant is an uncle of the prosecuting witness. If it took positive testimony to corroborate a witness as to sexual intercourse, very few, if any, cases would ever he made out, because in this act none are so brazen as to expose themselves to public view. Appellant insists that the statement of Emma Latham to Dr. Sparks that appellant was the father of the child was excluded by the court, and should -not be considered by us, while the record before' us says: “The Court: For the present, gentlemen, I will withdraw that from you, meaning the testimony beginning at the top of this page down to this ruling.” While the statement quoted by us was on the preceding page, yet, excluding this, it is in evidence that Mrs. Latham, the mother of Emma, wrote to Dr. Jordan, defendant; that he prescribed medicine for the prosecuting witness without seeing her; that he sent his nephew to see her while she was in this condition, after getting the letter from her mother, and the person sent, sought to obtain from the witness an admission that others were the author of her ruin, and while, as said in Woolley v. State, 50 Texas Crim. Rep., 214 , 96 S. W. Rep., 27 , the fact that a person gave birth to a child is not sufficient to prove any particular person is the father of the child, yet it is proof positive that she 'had sexual intercourse with some person. To this we agree, but that case, and every other case that we have found, considers the birth of a child a circumstance to be considered with other circumstances in the evidence, and if the evidence as a whole, taking all the. circumstances into consideration, convinces a jury beyond a reasonable doubt of one’s guilt, this court will not disturb the verdict. This is the second appeal in this case, and while on the former appeal the case was reversed because of the failure to properly limit certain testimony in evidence, yet twice have juries found that the -prosecuting witness’ testimony is corroborated under a proper charge. Motion overruled.
Overruled.