The judgment herein was affirmed at the present term of the court. Motion for rehearing is based upon the following grounds: 1st, that the court erred in not holding that Olivet Green was incompetent as a witness by reason of his youthful age. 2d, that the State failed to prove that appellant and prosecutrix were not husband and wife. 3d, that the venue was not shown, and, 4th, that the court should have submitted the issue to the jury that if appellant was not more than 16 years of age at the time of the trial, the jury should have been given the option of sending him to the reformatory or penitentiary.
This is practically a submission on rehearing of the salient features of the case decided in the original opinion. We held, and still adhere, to the statement in the original opinion that the bill of exceptions, which is therein set out, fails to comply with the requirements of the law in that it does not set out the facts and circumstances which show or tend to show that the witness Green was incompetent to testify by reason of his age, but the opinion went further and held that if all the evidence had been incorporated in the bill, still the court did not err in permitting the witness to testify. In regard to this witness, we find in statement of facts practically the following: "My name is Olivet Green. I am seven years old. My papa's name is Ed Green. I do not know the nature of an oath or what it means to swear. I do know that it means that I will be punished. Nobody told me that. I knew it myself. I knew that to hold up my hand and swear meant that I would be punished. I know what will happen to me if I don't tell the truth. If I don't tell the truth I will go to Huntsville. Papa and mama haven't talked to me about this since that time. They didn't tell me anything about going to court. I didn't know anything about where we were going last night when we left home. Nobody told me that, but I knew it. Nobody told me that at all. I knew that we were coming up to Bellville when we started up here last night. I just found it out, nobody told me what we were coming up here for. I knew for a good while if we swore a lie we would go to Huntsville. Nobody told me that. I just knew it myself. I have known that since I was four years old. I don't know what we would go to Huntsville for." This and similar testimony was drawn out from the witness in testing his competency. If we were permitted to go outside the bill of exceptions and look to the record in the statement of facts, we are of opinion that this witness was shown to be sufficiently *Page 389 competent to testify in regard to the facts of the case, and this is strengthened by reference to the witness' testimony delivered before the jury. We therefore are of opinion that on this question the conclusion reached in the original opinion is correct.
Nor is there any merit in the second contention, that is, that the State failed to show that appellant and the little negro girl were married. We are still of opinion that the evidence is sufficient to show that appellant was a white boy 17 years of age, and the 12 year old girl was a negro, but if they were both white or both negroes the status would not be changed, because under the laws of Texas the girl could not be a married woman at that age. She could not, under any circumstances, be married under 14 years of age, and this question has been expressly decided by this court in Hardy v. State, 37 Tex.Crim. Rep.. Intercourse or attempted intercourse with a girl of that age would constitute rape or attempt to rape, as the facts might show the offense to be. Therefore, she could not be the wife of appellant.
The venue, we think, was sufficiently proved, but if it was not directly and positively proved, our statute provides in order to take advantage of this question, there must be a contest over it in the trial court and the matter preserved by bill of exceptions in order to take advantage of it on appeal. This question has been frequently so decided under the terms of that statute. Therefore, there could be no error in regard to that matter. However, there is one exception to the above statement, and that is where the issue was fought out upon the trial as to whether the offense was in the county where the venue was laid or not, we would notice it without requiring a bill of exceptions.
The remaining contention of appellant is that the jury should have been instructed that they could exercise the discretion of sending him to the penitentiary or to the reformatory. This question was fully decided in the original opinion. Appellant was over 16 years of age at the time of the alleged offense and was, of course, over that at the time of the trial.
There being no sufficient merit in the grounds of the motion for rehearing, it is ordered that it be overruled.
Overruled.