The indictment was returned on the 26th day of March, 1924.
The prosecutrix, Ella Dicke, testified that she was fifteen years of age on the 16th of July, 1923; that the last time she had intercourse with the appellant was in the early part of July, 1924, and that at the time of the trial, which took place in April, 1924, she was pregnant with a child. She testified that the appellant had intercourse with her in February, 1923, and at other times later and prior to July of that year. She also testified that two years before she had had intercourse with the appellant and that their relations resulted in the birth of a child on the 7th of November, 1922. In her cross-examination, the prosecutrix reiterated her statement that the last act of intercourse with the appellant occurred in July, 1923. On both direct and cross-examination she declared that she could not fix the exact date but that it was in the first part of July, 1923, and before her birthday.
The prosecution was confined to the alleged act of intercourse in July, 1923, and the jury was instructed that the prosecutrix was of unchaste character, and by which charge it was made plain to the jury that if the act of intercourse relied upon took place after the 16th of July, 1923, there should be an acquittal.
The prosecutrix testified specifically that she was not the wife of the appellant.
Appellant insists that applying the evidence in the present case to the principle which requires that the testimony of the prosecutrix be carefully scrutinized, her testimony does not overcome the presumption of innocence. Reference is made to the cases of Gazley v. State, 17 Texas Crim. App., 267, and Charles v. State, 196 S.W. Rep., 179. The rule stated is regarded as sound and has been given effect many times, including the recent case of Terry v. State, 266 S.W. Rep., 511. Its application to the present facts, however, is not clear. *Page 196
The question at issue is not whether the act of intercourse took place or whether there was consent, but whether the date of it was antecedent to the fifteenth birthday of the prosecutrix. That is to say, the supporting testimony as to opportunity and association is such that even if the law demanded corroboration, which it does not demand, this court would not be warranted in overturning the finding of the jury, sanctioned by the trial court, upon the ground that the sexual relations between the prosecutrix and the appellant were not proved. See Nash v. State, 61 Tex.Crim. Rep.; Slaughter v. State, 86 Tex.Crim. Rep..
On the question of date, her testimony alone is given. The particular time that the act of intercourse took place is of a nature which would render it difficult to fix by testimony other than that of the prosecutrix. The surrounding circumstances showing the opportunity were at hand as was also the previous intimacy of the parties. There is no controverting testimony, and it is not believed that any violence was done the principle stated in the authorities mentioned in refusing, upon the original hearing, to set aside the judgment of affirmance.
The motion for rehearing is overruled.
Overruled.