The opinion
ON KEHEABING.
May 31, 1916.
HARPER, Judge.
Appellant has filed a motion for rehearing presenting but one question. Appellant says: “This honorable court erred mind seemed most important in this: That appellant in his brief presented as best he could the proposition that there was no testimony
*496
in the record supporting the act relied upon by the State for a conviction, in that the State elected upon, and the court charged the jury upon,
an act in the barn at defendant’s home,
and as pointed out in the brief, there is no testimony of such act in the record, the evidence being that the act in the barn occurred in 1914, long prior to the date (January 12, 1915), where limitation started.”
It is true the record discloses that Lillie Mae Cox testified to an act of intercourse occurring at the barn, 1914, but appellant is mistaken in stating that this is the only act she testified to occurring at the barn. She testified to an act occurring at the barn just prior to her fifteenth birthday. On direct examination she testified: “The next time he. had intercourse with me between January and my birthday was about two or three days before the 18th of February (1915). I know because it was my monthly time on the 18th of February.” It is also true that on direct examination she did not fix the place where this act of intercourse took place, but on cross-examination she did so. Appellant’s attorney was questioning her about not telling him about this act when she talked to him. She testified: “I said there was no act during that time, but I never thought about this act until late last night; the act was
down at the barn
one evening; we went down there to strip feed and the reason I remember it is because he said, ‘We better right now while we have a chance because it wouldn’t be but a little time until my monthly time.’ ” .
The court in his charge limited the jury to a conviction for this act ■of intercourse and gave three of appellant’s charges so limiting the testimony and instructed the jury that if they did not find beyond a ¡reasonable doubt this act occurred they would acquit appellant. Appellant’s able counsel evidently overlooked the fact they in their cross-examination, before the State elected, had caused her to definitely fix ;.the time and place that this act occurred.
The motion for rehearing is overruled.
Overruled.