Appellant, in his motion for a rehearing, insists that the prosecutrix, who was nine years of age at the time of the trial, was not a competent witness inasmuch as she was not subject to the pains and penalties of perjury.
His contention is based on H. B. No. 1073, passed by the 45th Legislature and approved June 9, 1937, which provides:
"The term 'delinquent child' shall include any boy between the ages of ten and seventeen years and/or any girl between the ages of ten and eighteen years who violates any penal law of this state, * * * [etc.]."
The Act further provides that whenever any girl between the ages of ten and eighteen years or any boy between the ages of ten and seventeen years shall be brought before any juvenile court upon indictment or information — the court may, if in the opinion of the judge the cause so merits, commit such person to the Juvenile Training School. Said Act does not expressly repeal Article 30, P. C., which provides that "No person shall be convicted of any offense committed before he was nine years of age except for perjury," etc. *Page 242
Therefore the Penal Code of this State still provides for punishment for children under nine years of age who are guilty of perjury. Unless we should hold that Article 30, P. C., is repealed by implication, appellant's position can not be sustained. This we can not do for two reasons: (1) The law does not favor the repeal of a statute by implication; and (2) when a girl between the ages of ten and eighteen is tried as a delinquent child, the judge before whom such child is tried may send her to the Juvenile Training School if he thinks it is the proper place for her. If he does not so think, it seems that he may, in the exercise of his judicial discretion, send her elsewhere. But nowhere is it provided in this new Act that a child under the age of ten years may not be punished. Since Article 30, P. C., providing for the punishment of a child under nine years of age for the offense of perjury and Article 308, P. C., prescribing the punishment for perjury are not repealed, the same must be given effect in construing the statutes relating to the punishment of children. It follows, therefore, that the prosecuting witness in the instant case was subject to the pains and penalties of perjury and was a competent witness.
Appellant contends that the evidence is insufficient to sustain his conviction. He claims that prosecutrix contracted the disease from her older sister. There is no evidence in the record to support his contention. To the contrary, Dr. Hillard, who examined this older sister, testified that she had no trace of gonorrhea. That he also examined the father and mother of the prosecutrix but found no evidence of such a disease present. However, appellant was affected with the disease. The prosecutrix testified to facts which made a complete case against him and she is corroborated by many facts and circumstances. Hence the issue of appellant's guilt became one of fact for the jury and they decided it adversely to his contention. This Court is not authorized to reverse a case for insufficiency of the evidence unless it can be said as a matter of law that the evidence fails to show beyond a reasonable doubt the appellant's guilt. This we can not do under the evidence in this case.
All of the other matters urged by appellant in his motion have been considered by us and are deemed to be without merit.
The motion for a rehearing will be overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 243