In an able and extended motion for rehearing, appellant contends that we should have held the trial court in error for adjudging appellant to be over seventeen years of age at the time of the presentation and hearing upon his affidavit of juvenility.
The bill of exceptions to the action of the trial court in this matter is very lengthy, and sets out in extenso the testimony adduced on the preliminary hearing. Said bill is qualified by the statement of the trial court that the witnesses for the appellant gave testimony so contradictory and inconsistent as to make it incredible. We have gone over this testimony given by the aunt, father, and mother of appellant (all being negroes) and must say that we are not disposed to criticize the view taken of it by the trial court. Each of said witnesses stuck to the fact that appellant was born November 3, 1902, and was therefore 16 years of age at the time of said hearing in 1919, but their testimony upon cross-examination is such as that we can easily see how the trial court discredited same. The aunt said she had lived in Ft. Worth for fourteen years preceding the hearing, and had lived in McLennan County four years next before moving to Ft. Worth, and that previous to that she lived in Bell County, during which residence and in which county appellant was born. If this was true, appellant was considerably over sixteen years of age at said time. Appellant's mother said she was born in November, *Page 618 1882, in Bastrop County, and moved to Bell County in June, 1900, and that soon after she reached Bell County she began keeping company with the father of appellant and became pregnant by him within a year thereafter, appellant being the result.
Appellant was born in November, and from his mother's testimony it would appear that his probable birth was November, 1901, which coincides with the age of appellant as same appears on the census report of the Itasca colored schools, which report is also in evidence. The burden being upon the appellant to prove that he was under seventeen years of age at the time of said hearing, if he failed to discharge this burden it was the duty of the trial court to refuse his motion to dismiss on account of juvenility. The exercise of his sound discretion by the trial court should not be reviewed by us unless we are convinced that such action was unsupported by and contrary to the credible evidence. This we are not prepared to hold in the instant case, and the motion is overruled.
Overruled.