This is a conviction for rape upon a girl under fifteen years of age, the punishment being assessed at five years in the penitentiary.
The State's case shows rape upon a little negro girl, Lovie Green, who was about twelve years of age. She swears positively to the rape. Her little brother was in company with her and she and he both testify that appellant jumped out of the bushes on the side of the road and carried the little girl out in the bushes. The girl testified to the rape and they both testified that the boy ran home to tell their father and mother, who lived a few hundred yards away. Her father and mother corroborate her statement to the effect that they met her coming home a few minutes after the outrage and the mother examined her and found evidence of sexual *Page 386 intercourse. Other witnesses testify to seeing appellant riding in the direction of where the rape is said to have occurred and a very short time before it occurred. These witnesses also testify to seeing the two children not far away from the same place and going in the same direction in which appellant was traveling and just a few moments before the alleged offense occurred. Appellant, testifying in his own behalf, denies the entire transaction, but stated that he saw the two little negro children at or near the place designated and told them to get out of the road, and if they didn't, he threatened to run over them with his horse. It is shown by his own, as well as other, testimony introduced in his behalf that he had been at his father's blacksmith shop in the little village of San Felipe; that he and his father left the blacksmith shop about 6 o'clock to go home; that on reaching home he saddled a horse to hunt for a cow, and while hunting the cow he saw the two little negro children, prosecutrix and her little brother. The age of defendant is put down at sixteen years on the 16th of August, 1908, his father and mother testifying that he would be seventeen on the 16th of August, 1909. When the little seven-year-old witness was tendered, appellant reserved the following bill of exceptions: "Be it remembered that on the trial of this cause Olivet Green, a boy seven years of age was called as a witness for the State, and upon being examined by the court and counsel as to his being competent to testify, defendant, through his counsel, objected to the said witness being permitted to testify because the said witness did not understand the nature of an oath and had not sufficient intelligence to give testimony, which objection thus made by counsel for defendant was overruled by the court and the said witness permitted to testify," etc. None of the proceedings had in regard to testing the competency of this witness is stated in the bill of exceptions. The bill can not be aided by going to the statement of facts or other parts of the record, but if we were authorized to do this, we are of opinion that the evidence bearing on this question, as well as the evidence of the witness himself, shows there was no error on the part of the court in this matter.
In the motion for new trial the charge of the court is criticised because the court in submitting the case used this language: "If you believe . . . that the defendant did, as charged in the indictment, on or about the 23d day of March, 1909, as alleged, in the county of Austin, and State of Texas, have carnal knowledge of said Lovie Green," etc. The criticism being that the offense is not alleged to have been committed on the 23d of March. The indictment alleged it was committed on or about the 24th of March. This is not of sufficient importance to require a reversal of the judgment. There is no question of limitation in the case. Some of the witnesses state that the transaction occurred on the 23d. In any event *Page 387 it is a matter of no moment and this exception to the charge is without merit.
It is complained that the court's charge in respect to the punishment is incorrect. The court charged the jury that if they should find defendant guilty they should assess his punishment by confinement in the penitentiary for life, or, in the discretion of the jury, at any term of years not less than five. The punishment is correctly given. See article 639, White's Annotated Penal Code. While article 639 provides that the punishment may be by death, life imprisonment, or for any term of years in the penitentiary not less than five years, that portion of the penalty with reference to death was not authorized in this particular case inasmuch as defendant was under seventeen years of age. Our statute prohibits the infliction of the death penalty where the alleged offender is under seventeen years of age. The charge, therefore, as given, correctly states the law of punishment.
It is contended that the court erred in not submitting the issue of the age of appellant to the end that the jury might assess the punishment at confinement in the reformatory or the penitentiary. There is nothing in this contention. Appellant was sixteen years of age in August, 1908, and this offense was committed on the 23d or 24th of March, 1909. He was more than sixteen years of age at the time of the transaction, as well as at time of trial.
A reversal is asked because the evidence fails to show that the alleged injured female was not the wife of the defendant. Singular to say, but the statement of facts does not show positively, or rather by positive statement, that she was not the wife of appellant. However, the circumstances show that she was not his wife. She was a negro girl twelve years of age on the 4th of February before the occurrence in the latter part of March. Appellant, from the testimony, seems to have been a white boy in his seventeenth year. He speaks of the children as two little negroes and threatened to run over them with his horse if they did not give him the road, and, in fact, the testimony shows they were negroes, and that prosecutrix was just over twelve years of age. The testimony shows that appellant lived with his father and mother, who, from the testimony, evidently are white people. The little negro girl, prosecutrix, lived with her father a mile and a half away from appellant's place of residence. This court knows judicially that a girl of that age could not marry under the Texas law, fourteen years being the youngest age at which a marriage could occur. This court would also judicially know that under the laws of Texas a marriage between a white man and a negro woman, or a white boy and negro girl, could not be had. While, as before stated, the evidence is not positive that they were not married, yet the circumstances show beyond any question they were not husband and wife. *Page 388
There being no error of sufficient importance to require a reversal of the judgment it is affirmed.
Affirmed.
ON REHEARING. December 8, 1909.