Appellant was convicted of the rape of a fifteen year old girl and his punishment fixed at ten years confinement in the penitentiary.
It is claimed, on appellant's behalf, that he was under seventeen years of age at the time of his trial. An affidavit was filed setting forth his age, and this matter was presented to the court, who, after hearing evidence, entered an order and judgment that appellant was more than seventeen years of age, and he was accordingly tried and convicted as in an ordinary felony.
Appellant presents two bills of exception complaining of what transpired upon the hearing before the court in the introduction of testimony in order to enable the court to pass upon his affidavit of juvenility. We think the introduction before the court of his statement while under arrest, of his age, is in violation of our rules against the admission of confessions. Oliver v. State, 81 Tex.Crim. Rep.. But as the matter was before the court, the presumption obtains that there was sufficient legal testimony upon which the court based his judgment.
The complaint against the admission before the court of the census report of the Itasca school district for the year 1918-1919 is without force. The census taker identified said report as having been taken and made by him, and it was produced from the custody of the county superintendent of schools, who was the proper custodian thereof. Same showed the name of appellant as a scholastic, and that the date of his birth was such as to make him more than seventeen years of age. The fact that the census taker could not identify the person whose name was attached to said report, nor of *Page 616 his own knowledge state that she was the mother or guardian, went to the weight of said testimony, which was for the court in that character of inquiry.
Appellant asked that the jury be instructed not to consider the evidence of force, or that there was blood or wounds on the injured female. The court's refusal to give said special charge was proper, there being two counts in the indictment, one charging statutory rape, and the other rape by force.
Appellant also asked that the jury be told that they could not convict if they believed him under seventeen years of age at the time of the commission of the alleged offense. This was properly refused. The matter of appellant's age was before the court only as bearing upon the question of his juvenility, which was a matter for the court and not for the jury. The question of his age, we further observe, is confined to the time of the trial and not the time of the commission of the offense. There being no question in the case as to the fact of appellant being of sufficient age to make him legally responsible, the court did not err in excluding from the jury evidence as to the appellant's age, nor in refusing to dismiss the case after the evidence was concluded.
Appellant's affidavit that he was a juvenile was controverted by the State, and upon this issue evidence was heard, at the conclusion of which the court entered his order and judgment refusing to dismiss said indictment. There is no approved statement of the facts heard by the court, but there is in the record what purports to be a bill of exceptions containing over thirty pages of questions and answers. No ground of exception is stated anywhere in said bill. As originally presented in the record said bill of exceptions was not signed by the court, nor was there any concluding portion to said bill as prepared by his counsel, but the same has been corrected, and the correction considered by us. The court qualifies this purported bill of exceptions with the statement that he heard the witnesses offered, and their testimony was so contradictory as to lead him to believe the same false. There was some evidence offered by the State in rebuttal of that of appellant on the question of juvenility. Article 1195, C.C.P., puts the burden of proof, in matters of this kind, upon the appellant, and its requirement is that the evidence must be such as that the trial judge is satisfied therefrom that the accused is less than seventeen years of age. The repetition in said article twice, of the fact that the evidence must satisfy the trial judge that the accused is less than seventeen, would seem to indicate an intention on the part of the Legislature to place large discretionary powers in such trial judge in determining this question. Evidently the law makers must have had in mind the ease with which the issue of the exact age of one charged with crime, and who might have been either a little over or a little under age of seventeen, *Page 617 might be beclouded, and that the result of a decision of this question could only be to effect the place of confinement and not the question of guilt or innocence. It seems the Legislature did not expect the decision of the trial judge in this matter to be reviewed, except it was manifestly wrong, which we cannot say of the decision of the court in the instant case.
The fact of appellant's guilt was beyond controversy. The girl upon whom the rape was committed was only fifteen years of age. She and two other negro children testified positively to the fact of the assault, and her bruised and bloody condition was testified to by several other people who saw her soon afterward, and in addition to the two children and the prosecutrix, two white men were called as witnesses for the appellant, who were passing along the road not a great distance away, and saw part of the occurrences, and what they state fully corroborates the State's witnesses.
There being no reversible error in the record, the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. October 15, 1919.