In this case, appellant was charged in the District Court of Falls County, by an indictment containing a number of counts, among which were rape, assault with intent to rape, etc. On the trial, the court submitted to the jury only the count charging rape, and the count charging assault with intent to rape; and under this charge appellant was convicted of assault with intent to rape, and his punishment was fixed at four years confinement in the penitentiary, from which he appeals. The injured female was alleged to be under the age of consent. *Page 350
The appellant first claims that the verdict is without support, by reason of lack of evidence as to the non-age of the prosecutrix. Upon this point it will be noted that the girl swore that she was thirteen years old at the time of the alleged offense. Mr. and Mrs. R.A. Burroughs each testified that they were familiar with children and their ages, by reason of having been managers for a number of years of an orphanage where there were several hundred children, and that they saw the girl in question soon after this offense was alleged to have been committed, and when she was brought to the Orphanage; that they had known her intimately since, and that in their judgment she was at that time twelve or thirteen years of age. The weight of this testimony was for the jury, and we are unable to conclude that the jury's belief of the same was not sufficient to justify their verdict.
A bill of exceptions was reserved to the action of the trial court in overruling appellant's objection to allowing the prosecutrix to state her age, but no ground of this exception is set up in the bill. The girl stated that all she knew as to her age she got from appellant, who had adopted her when she was a baby; that he had told her that she was only a year and a half old when he adopted her, which would make her thirteen at the time of this prosecution.
It is the law of this State that such a witness might state her age, based on what her parents had told her. Sheppard v. State, 56 Tex.Crim. Rep.; Curry v. State, 50 Tex.Crim. Rep..
We think this rule applies to one testifying to her age, based on statements made to her by one who had adopted her when an infant, and who then stood to her in loco parentis, and from whose statements she derived her only knowledge as to her age. In this case, however, the testimony of the girl on this point is supplemented by that of two witnesses, who stated that they heard appellant testify at another time and place that he had adopted the child when only a year and a half old.
The second contention of appellant is contained in his second assignment of error, and has been substantially disposed of in what we have just stated, the said contention being that the trial court should not have allowed the prosecutrix to state her age, the same being based on what appellant had told her.
There appear in the record two bills of exceptions, substantially alike, reserved to the action of the court in admitting the testimony of Mr. and Mrs. Burroughs, the objection being that their testimony as to the age of the prosecutrix, based on her appearance, etc., was merely an opinion, and they not being experts, should not be allowed to give such opinion. We doubt if expertness is a necessary condition in such case, but if it were, these two had that experience which qualified them to testify as experts. In Donley v. State. 71 S.W.R., 958, this court held it error for a trial court to refuse to permit certain witnesses to testify that they knew the prosecutrix *Page 351 some years before, and from her size and appearance at that time, in their opinions she was about eight years old. See, also, Donley v. State, 44 Tex.Crim. Rep.; Bice v. State, 37 Tex. Crim. 38; Poulter, 70 Tex.Crim. Rep., 157 S.W.R., 166.
The court submitted in his charge assault to rape as well as rape, and there was an exception to the charge on assault with intent to rape, because there was no evidence of force. In this character of rape, or assault to rape, only so much force is required as may be necessary to effect penetration, and this was plainly testified to by the prosecutrix, and the law applicable to such force was pointedly submitted to the jury.
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.
ON MOTION FOR REHEARING. January 14, 1920.