¶1 ON rehearing.
¶2 December 16,1920.
¶3 There is but one question that is thought necessary to be noticed in the State’s motion for rehearing filed by the prosecution in the trial court. This refers to what the motion says in an incorrect statement of a fact not found in the record. The language of the motion is as follows: “We have diligently searched the record to find such testimony and we cannot find it,” etc. The matter referred to in the motion is thus stated, substantially, that the court was in error in stating “There is evidence of parties who talked with prosecutrix th'e morning after the rape occurred at night showing that she stated she did not know whether her assailant was a white man or a negro.” That statement from the opinion is substantially correct. The opinion is attacked, on that statement. The court correctly stated the matter in the opinion. On page 37 of the record, in the testimony of the witness Carver, set out in bills of exception Nos. 1 and 5 which were approved by the court, this language is found:
*304 “I seen two niggers talking there to her, and after I had got out there I learned there had been a prowler, or some one in the yard, but I didn’t know it at the time. Then I stopped and talked to her, but she did not tell me that the man she saw was a white man, she said she didn’t know, that it was dark and she didn’t know him; that he was a tall fellow, rather stoop shouldered. I did not tell her, ‘we think it is this same man here, and you must not say he was a white man, I have almost gotten a confession out of that nigger.’ I told her, ‘You must be positive.’ ”
¶4 On page 65, in another bill of exceptions approved by the court, practically the same language is found as that quoted above. The witness further says: “I told her she must be positive whether he was or was not the nigger. The fact she was talking to two niggers, that is the reason why I stopped, I thought I would stop and ask her and see if she had any information about who those two niggers were.” It is unnecessary to discuss this matter with the record in this shap.e. The language in the opinion did not quote exactly that of the witnesses, but it is substantially correct. She stated she did not know who it was that assaulted her, whether it was a white man or not. She was being queried about it in the presence of these two negroes for the reason stated by the witness. We are of opinion that the criticism is without merit. The statement in the opinion is in accord with transcript as approved by the trial judge. The other matters we deem unnecessary to discuss.
¶5 The motion for rehearing is overruled.
¶6 Overruled.