¶1 ON REHEARING.
¶2 February 23, 1921.
¶3 Appellant insists that when on the witness stand he admitted that he had made statements, in his two applications for continuance, contradictory of his testimony; and that having made such admission, this case should now be reversed because the State was allowed to put both of said applications in evidence. The objection, that the applications should not be allowed because he had already admitted such facts, does not appear in the bill of exceptions. If it did so appear we would be compelled to hold that in order to justify the rejection of proof thereof his admissions would have to be without qualification, which was not the case. xThe facts show that two applications for continuance had been made, presented and overruled. Each of them contained matter contradictory not only of appellant’s testimony on this trial but of each other. While admitting that he signed and swore to such applications, appellant made various excuses and statements regarding the circumstances under which he made said statements if they appeared therein, stating, in effect, that he did not know that parts of the statements attributed to him were in such applications;—that they were rushed for time in preparing same;—that his mistake was as to dates;—that he called his attorney’s attention to one of the mistakes. It seems well settled that where one makes a qualified denial, the party attacking such witness is entitled to introduce proof of the contradictory statements. We have examined the authorities cited. None of them, nor does any other known to us, hold it reversible error to allow proof of such contradictory statements when the denial is qualified; nor do any of the authorities cited even go to the extent of holding that a case would be reversed where the witness admitted having made the contradictory statement, and proof was thereafter admitted of same.
¶4 There was no error in refusing the motion of appellant to instruct the jury not to consider the preliminary statement made by the State, as evidence. The statement was made by an attorney for the prosecution, and it appears throughout to be a statement of what the State expected to show by witnesses. Nohing herein appears to make it at *525 all probable, or even possible, for the jury to consider that same was being given by said attorney as a witness or as his testimony.
¶5 The proposition is urged that notwithstanding the fact that prosecutrix testified positively that there was but one act of intercourse between appellant and herself, which occurred on July 8, 1918; and that appellant testified with equal positiveness that there was never any act of intercourse between them at all, still the trial court erred in not telling the jury that they could not convict if the act took place before June 19, 1918, at which time the law raising the age of consent to eighteen became effective. It is well settled that there must be some substantial evidence calling for an instruction before it becomes the duty of the trial court to give same. In 'this case the prosecutrix testified that she had been out with appellant in his car a few times before the 19th of June, but that no act of intercourse took place between them. She stated that on these occasions.he kissed her and fondled her person, and that he sought her carnal favor, but she denied positively that anything of the kind occurred. It seems to us so very unlikely that the jury would have disregarded the positive testimony of the prosecutrix that the only intercourse was on July 8th; and would also have disregarded the positive testimony of appellant that no such act of intercourse occurred at any time; and that the jury would have presumed, in the face of all the testimony on that point, that the intercourse occurred before June 19th, that we are constrained to hold that it was not necessary for the trial court to have given the charge asked presenting said issue.
¶6 We have carefully considered the other grounds contained in this motion for rehearing, but believing that all of them were correctly disposed of in our former opinion, the motion will be overruled.
¶7 Overruled.