Costillo v. State

Appellant, in his motion for rehearing, seriously contends that in the disposition made of this case, we erred in several respects.

His first contention is that we erred in holding that the testimony given by the prosecutrix to the effect that she was born in Bexar County on the 13th day of June, 1927, and that she knew this because her grandmother had told her, was not hearsay. It may be hearsay, but yet it seems to be the rule that age may be proved by the testimony of the person whose age is questioned; and the fact that his or her knowledge is derived from a statement of the parents or family reputation does not render it inadmissible. While the authorities in this state are not altogether in harmony on the subject under consideration, nevertheless, we think that the rule announced by this court in the following cases is the safest and soundest; Curry v. State, 50 Tex.Crim. R.; Boyd v. State,72 Tex. Crim. 521; Sheppard v. State, 56 Tex.Crim. R.; Vaughn v. State, 62 Tex.Crim. R.. Otherwise, girls under the age of fifteen years who came to this state with their parents, who had died since their coming, would be favored prey for licentious men because the State *Page 498 would be unable to make proof of their age by anyone who might have personal knowledge of that fact. Of course, if the mother is living, she should be called as a witness to testify to the age of her child, but where the evidence shows the parents to be dead, the child may testify as to her age from information obtained from her mother.

Appellant next claims that we erred in holding that the argument of the District Attorney was not of such inflammatory and prejudicial nature as was calculated to inflame the minds of the jury to his prejudice. The argument complained of was a reasonable deduction from the evidence. He contends, however, that the evidence which is the basis for the argument was not pertinent to any issue in the case and was inadmissible for any purpose. We are unable to agree with him. We think it was proper for the State to account for its failure to call the mother or father as a witness to testify to their child's age when, as in this instance, it was made an issue. Appellant is quite correct in his contention that where the prosecuting attorney in his argument goes outside the record or beyond reasonable and logical deductions from the evidence and thereby arouses the passion and prejudice of the jury to the injury of the accused, the conviction should not be permitted to stand when the punishment assessed by the jury exceeds the minimum prescribed by law. In the instant case, the argument was based on the evidence introduced.

His complaint relative to the court's action in overruling his application for a continuance is without merit. The record fails to show that he exercised any diligence to secure the attendance of the desired witnesses. The indictment was returned against him in October, 1942, but he was not tried until April, 1944. Just when he applied for process to be issued for the witnesses is not shown. It may have been but a few days prior to the day of trial.

The motion for rehearing is 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 499