Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of fifteen years, and prosecutes this appeal.
What purports to be a statement of facts does not appear to have been approved by the trial judge, and consequently can not be considered. Appellant assigns as error the action of the court refusing to quash the indictment. His first contention is that the indictment is fatally defective because it alleges the offense to have been committed in "Guadlufe" and not Gaudalupe county; that there is no such county in this State, and the court consequently, is without jurisdiction. We have examined the original indictment, which appears in the transcript. We think the letter "p" is plain enough; and the name as written is idem sonans with Guadalupe. Appellant further insists that the indictment shows that it was presented by the grand jury of Gonzales County, at the August term, 1902, of the district court, when, he says, there was no such term as the August term. On application the court permitted the indictment to be amended in this respect, and to show that same was presented at the July term of said court. We think this was permissible. *Page 464
Appellant assigns as error the action of the court with reference to permitting the witness Maria Reiz to testify. We quote from said bill as follows: "The State offered as a witness Maria Reiz, aged eight years; and the said witness was sworn and allowed to testify. The defendant then and there objected to the action of the court allowing said witness to testify, for the following reasons, because said witness did not understand the obligation of an oath, and being under the age of nine years she could not take the oath subject to the pains and penalties of perjury as prescribed by the Constitution of the State of Texas (art. 1, sec. 5). Defendant's objections were then and there overruled by the court."
To which the court appends the following qualification: "This bill does not set out the examination of the witness on the question of her capacity. Being examined by the court, she stated that she knew it was right to tell the truth, and that it was wrong to tell a lie; that if she told a lie, she would be sent to jail. She appeared to the court to be in every respect qualified to testify." The bill here presented attempts to raise a very interesting question, and, so far as we are advised, one that has not been passed upon by this court; that is, whether a witness who, under our Constitution, article 1, section 5, which provides that all oaths shall be administered, etc., subject to the pains and penalties of perjury, while article 34, Penal Code, exempts all persons under 9 years of age from punishment for any offense. The contention being that, inasmuch as said Maria Reiz can not be prosecuted for perjury in the courts of this State, the oath required by the Constitution could not be administered to her, and consequently that she could not testify as a witness. As stated, this is a very important question, but it is not necessary to be decided here, because the bill of exceptions is incomplete. It is not shown that the witness testified to any facts against appellant, much less that her testimony was of a material character. The bill states that she was eight years old, and aside from the statement of the judge that she testified that she knew it was right to tell the truth, and that it was wrong to tell a lie, and that if she told a lie she would be sent to jail, it does not appear that she testified further in the case, or that she stated any fact that could be used against appellant. Not only does the record fail to disclose that she testified to any material fact against appellant, but there is no statement of facts in the record. So that we are unable to look to the statement of facts, even if we were permitted to do so, to ascertain the character of her evidence. If we had the statement of facts before us, it might appear that she testified to some immaterial matter, and that the facts proven by other witnesses abundantly established appellant's guilt. In the absence of a proper bill of exceptions, we can not revise the action of the lower court. White's Ann. C.C.P., art. 724, sec. 859, and authorities cited. There being no error in the record, the judgment is affirmed.
Affirmed. *Page 465
ON REHEARING.