The appeal is from a conviction for statutory rape and punishment fixed at confinement in the penitentiary for a period of five years.
The application for continuance, based upon the absence of knowledge of witnesses by whom the age of the female named in the indictment might be proved and the belief that the fact that she was over fifteen years of age could be established by delay, was not followed by any verification of the motion for new trial or the accuracy of the information or belief upon which the motion is founded.
The bill alleging misconduct of the jury in view of the court's qualification that it was not supported by proof does not present error. The assignment in the motion for new trial and in the bill of exception mentioned charging misconduct of the jury was one, we think, that the court was not required to hear evidence upon for the reason that it was too general, and further, was a character of alleged misconduct inquiry into which is prohibited by public policy, namely, the use made by the jury of evidence legitimately before it. Turner v. State, 61 Tex.Crim. Rep.; Watson v. State, recently decided; Jack v. State, 20 Texas Crim. App., 656; Morrison v. State, 39 Tex.Crim. Rep.; Black v. State, 41 Tex.Crim. Rep.; Kannmacher v. State,51 Tex. Crim. 118.
The sufficiency of the proof of the age of the female named in the indictment is challenged. It is conflicting and the conclusion that the age of the girl is not shown to be under fifteen years could well have been reached; but deferring to the rule of law which makes the solution by the jury of controverted questions of fact binding upon the courts where there has been no error in the conduct of the trial, we are constrained to overrule the assignment complaining of the sufficiency of the evidence.
The injured party testified to her age as under fifteen years at the time of the offense, declaring that she testified from knowledge derived from her mother. This character of testimony has been received and given weight in numerous instances. Boyd v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 67; Lott v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 544; Knowles v. State, 44 Tex.Crim. Rep.; Sheppard v. State,56 Tex. Crim. 604; Vaughn v. State, 62 Tex.Crim. Rep.. The girl's mother testified to her age, though she was unable to state the year of her birth. She did state, however, the day of the month. Similar testimony was relied upon in Vaughn v. State, 62 Tex.Crim. Rep.. There were census returns introduced in evidence contradicting or tending to contradict the testimony as to the age of the injured female. One of these reports signed by the father of the injured party contained a schedule of the ages of his children which would have made his daughter, the person named in the *Page 610 indictment, more than fifteen years at the time of the offense. There were also some contradictory statements by the injured female herself tending to impeach her testimony as to her age. The parties appear to have been unfamiliar with the English language and lacking in education, and an effort was made on the part of the State to explain the discrepancy on these grounds. The evidence of the mother of the injured party, in spite of the contradictions and effort to impeach, having been accepted by the jury as true and their finding having been approved by the trial judge, we feel indisposed to disregard their conclusions.
The judgment of the lower court is affirmed.
Affirmed.
ON REHEARING. June 26, 1918.