witness answered, "I did not say that, positively did not." This ends the bill of exceptions. Thereafter the State placed upon the witness stand officer Perow, who stated over objcction that he did ask appellant's mother the question above set out, and that she said to him that said boy was in Beaumont with his father. We think this evidence admissible for the purpose of impeachment. The presence of appellant in San Antonio at the time the inquiry was made was a material matter, and, his mother being a witness, it was competent to impeach her by proof of said statement.

Appellant's bill of exceptions No. 4 complains of a questio to defense witness Ellison, said question being in effect if witness had not told officer Perow that the hands at witness' place with whom appellant associated were always teasing him about chasing white women.. There was no error in allowing the asking of this question as a predicate. The witness answered in the negative. The trial court did not err in allowing officer Perow to testify that defense witness Ellison did so state. The fact inquired about was not immaterial. Ellison was a witness on behalf of appellant, and was subject to attack by contradictory proof of any material matter. Appellant's good reputation and his conduct toward white people, and his disposition, were the matters about which witness Ellison testified affirmatively in behalf of appellant. Appellant's good reputation was necessarily based on what others said! of him. Ellison testified that he had observed appellant's conduct toward whites, and he was willing to swear it was good. The weight of this testimony would be affected if it could be shown that other persons who were associated with appellant at the same time and place at which he was working for witness Ellison, were known to Ellison to entertain views contrary to those embodied in his testimony and had expressed them to said witness. If the matter referred to about which appellant's associates were teasing him, was shown to have been jocular, such explanation could have been made. Appellant had a right to have the effect of said testimony of officer Perow limited to the question of affecting the credibility of witness Ellison, but he did not see fit to do this. We think no injury shown.

That Mrs. Howard, prosecutrix, went at once to her nearest neighbor, who lived but a few feet from the home of prosecutrix, and made complaint, and that she and her clothing were bloody, appears well within the settled law regarding recent complaint and the condition of the clothing of the assaulted female soon after the alleged assault. Duke v. State, 35 Texas Crim. Rep., 283; Lawson v. State, 17 Texas Crim. App., 292; Holst v. State, 23 Texas Crim. App., 1; Sentell v. State, 34 Texas Crim. Rep., 260. That the defense interposed was alibi, would not make such facts inadmissible. The burden is on the State to show that the rape was committed in the manner alleged, and complaint made immediately afterward, is held to be original evidence. Burge. v. State, 73 Texas Crim. Rep., 205, 167 S. W. 63; Rogers v. State, 65 Texas Crim. Rep., 105, 143 S. W. Rep., 631.

The indictment charged rape by threats, and this issue only was submitted to the jury. There was an exception taken to the form in which said issue was submitted. That portion of the charge directly relative to said issue was as follows:

"In this case the indictment charges rape by threats, and I charge you that threats, within the meaning of this statute must be such as might reasonably create a just fear of death, or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.

To constitute the offense of rape by threats, therefore, it must appear that the defendant had unlawfully assaulted the injured female, and by means of threats as above defined violently ravished and had carnal knowledge of her without her consent and against her will and. further, penetration of the sexual organ of the female alleged to have been ravished, by the male organ of the party accused must be proved beyond a reasonable doubt.

The penalty prescribed by statute for the offense of rape is death or confinement in the penitentiary for life, or for any term of years not less than five, in the discretion of the jury.

Accordingly you are instructed that if you belie e from the evidence, beyond a reasonable doubt, that the defendant did, as charged in the indictment, on or about the 24th day of February 1920, in the County of Bexar and State of Texas, make an assault in and upon the said Ruth Esther Howard, a woman, she not then and there being the wife of the defendant and did then and there by means of threats, violently ravish and have carnal knowledge of her, the said Ruth Esther Howard, without her consent nd against her will, you will find the defendant uilty as charged, and assess is punishment at death, or a confinement in the penitentiary for life, or, in your discretion, at such confinement for any term of years ot less than five." Appellant's contention that this fails to instruct the jury as to the character of threats which would be sufficient, does not seem sound in view of the above quotation from the charge. If appellant desired further instruction as to the influence exerted upon the mind of prosecutrix at the time of the alleged rape, by the threats in evidence, he should have asked special charges presenting such issue. We do not think the fact that the threats were accompanied by violence, would affect the validity of the proceeding, nor the support of the verdict by the evidence. Abundant evidence of threats appears in the record, and while the prosecutrix did not say in words that appellant accomplished his purpose by threats, she does state fully the threats made. by him when he came to her house and during the time he was there, and does say that just before he accomplished his purpose he told her if she holloed again he would kill her and her baby both. Rape may be by force or threats, or both, and when only one is alleged and both are proven, and beyond question contributed to the ravishment, this court will not indulge in hairsplitting speculation as to whether the

fear and intimidation resulting from threats alone, drove the victim. to submission, or as to the extent to which violence may have contributed to that end.

This disposes of the contentions made on behalf of appellant. That Mrs. Howard was brutally assaulted and ravished seems beyond question. Her identification of appellant as the party who committed the rape, was positive. Appellant's confession was equally as positive and fully admitted his guilt. True, he denied the voluntary character of this confession, but that question was one presented to the jury with instructions that they should not consider said confession if it was not freely and voluntarily made, or in the event they had a reasonable doubt as to such being its character. As far as we are able to determine all those safeguards necessary to a fair and impartial trial, which have been evolved by the experience of the courts, seem to have been present on the instant trial and granted to appellant. His good character was proven. His alibi was also as complete as his relatives could make it. A Bertillion expert who took an impression of a finger print on the bed of prosecutrix, and compared same with that of appellant, said they were not made by the same person. These were

all matters for the jury, and have been by them resolved against appellant.

The judgment is affirmed.

ON REHEARING.

Affirmed.

November 23, 1921.

HAWKINS, JUDGE.-On account of the extreme penalty having been inflicted in this case, we have again examined the record and the authorities cited in appellant's brief and referred to in his motion for rehearing. We regret that we have been unable to reach the conclusion so ably contended for by counsel. The view expressed in our original opinion was arrived at after careful consideration because of the severe penalty fixed by the jury. To write at length on the motion would amount to nothing more than an expression in different words of the same conclusions.

The facts alleged in the motion cannot be considered by us. Pye v. State, 71 Texas Crim. Rep., 94.

The motion is overruled.

Overruled.

U. S. PETIT V. THE STAte.

No. 6510. Decided November 30, 1921.

Intoxicating Liquor-Unlawful Possession-Repeal of Statute—Sale.

Where an examination of the amended section of the so-called Dean Liquor Law makes it plain that at present the possession of intoxicating liquor is not unlawful under the terms of said Act, except it be so possessed for the purpose of sale, the judgment below must be reversed and the cause dismissed.

Appeal from the District Court of Angelina. Tried below before the Honorable L. D. Guinn.

Appeal from a conviction of unlawfully possessing intoxicating liquor; penalty, one year imprisonment in the penitentiary.

The opinion states the case.

Denman & Collins, for appellant.-Cited: Weeks v. U. S., 232 U. S., 383; Boyd v. U. S., 116 U. S., 616; Amos v. U. S., U. S. Advanced Sheets, Page 316; 1920-21.

R. G. Storey, Assistant Attorney General, for the State.-Cited: Roberts v. State, recently decided.

LATTIMORE, JUDGE.-Appellant was convicted in the District Court of Angelina County of unlawfully possessing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Since the conviction of this appellant, what is known as the Dean Law was amended at a Special Session of the Thirty-seventh Legislature. Prior to said amendment, Section 1 of said Dean Law read as follows:

"That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, receive, deliver, solicit, take orders for, furnish or possess, spirituous, vinous or malt liquors or medicated bitters capabl、 of producing intoxication, or any other intoxicant whatever, or any equipment for making such liquors, except for medicinal, mechanical, scientific or sacramental purposes."

By said amendment said section was made to read as follows:

"That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, takeorders for, solicit, or furnish spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicant whatever, or any equipment for making any such liquors, or to possess or receive for the purpose of sale any such liquors herein prohibited."

An examination of the amended section, supra, makes it plain that at present the possession of intoxicating liquor is not unlawful under the terms of said act, except it be so possessed "for the purpose of sale." In other words, the gist of the offense now is the purpose for which such possession is had. There can be no question but that an indictment for the offense as now defined, must charge that such possession "was for the purpose of sale," and that the question of the purpose of such possession must be submitted to the jury in the charge of the court. By reason of said amendment the law under which this prosecution was had must be held to have been repealed. Cox v. State, No. 6423, 256, decided at this term. For the reasons therein given this cause must be reversed and the prosecution ordered dismissed. Reversed and Dismissed.

CLYDE ROZIER V. THE STATE.

No. 6402. Decided November 9, 1921.

Rehearing denied November 30, 1921.

1. Intoxicating Liquors-Transportation-Indictment.

There was no error in overruling defendant's motion to quash the indictment on the ground that the State law is in conflict with the Federal law upon the subject of intoxicating liquor. Following Ex Parte Gilmore, 88 Texas Crim. Rep., 529.

2.-Same-Motion for New Trial-Duress.

Where appellant claimed duress in his motion for new trial, but the record failed to show any such condition of fact, there was no reversible Following Burton v. State, 51 Texas Crim. Rep., 201.

error.

3.-Same-Rehearing-General Verdict-Indictment-Amending Sentence. Conceding the correctness of the proposition that the count in the indictment for "possessing" is bad, it does not follow by any means that the motion for rehearing is good, the record showing a general verdict upon the submission of all counts in the indictment, and that the evidence supported the good count in the indictment. Following Hyroop v. State, 79 Texas Crim. Rep., 150, and the judgment is so amended as to apply the conviction alone to the good count in the indictment.

Appeal from the District Court of Franklin. Tried below before the Honorable R. T. Wilkinson.

Appeal from a conviction of unlawfully transporting intoxicating liquors; penalty, one year imprisonment in the penitentiary.

The opinion states the case.

L. W. Davidson, for appellant.

90 T. C.-22