Appellant was convicted of rape upon Mattie Lou Roberts, a girl under the age of 15 years; and his punishment assessed at confinement in the penitentiary for a term of fifteen years.
The fourth bill complains that the court erred in permitting the family Bible of the father of the prosecutrix to be introduced in evidence. As a predicate for its introduction, the father testified that he entered the date of the birth of prosecutrix in this family Bible somewhere within the year after her birth, and that the entry was correct. The Bible had been in his possession all the while, and that he in person made this entry. This testimony was admissible.
Bill number 5 complains that the State "offered" to prove by Mattie Lou Roberts the following: "Q. When defendant came in the room that night, was Amanda Ledwell there? A. No, sir. Q. Did any one come back there to the house with defendant when he came? A. No, sir. Q. How came Amanda Ledwell to leave the room? A. John Woods came in there after her." To which appellant objected because said evidence is irrelevant and immaterial, and calculated to prejudice the rights of the defendant before the jury; and, further, because any testimony as to what John Woods and Amanda Ledwell did is incompetent. The court qualifies the bill as follows: "That the evidence showed that John Woods and defendant had been together talking to each other immediately before defendant went to the room of the prosecutrix." This *Page 326 bill is defective in that it states that the State "offered to prove." It does not affirmatively appear that the State did prove the facts above detailed, unless the explanation of the court by inference shows the same was proven. However, in our opinion, this testimony was admissible. Defendant and John Woods being together immediately preceding and being together at the time, we know of no rule of evidence that would exclude the acts of the parties occurring in the presence of defendant.
Bill number 6 complains that the court erred in excluding the testimony of defendant to the effect that prosecutrix had been notified that defendant was a married man. Appellant insists this testimony is admissible in view of the fact that the State's testimony tended to show prosecutrix was decoyed and deceived by defendant, who had led her to believe that he would marry her. There was no error in the ruling of the court. It is a felony per se to have carnal knowledge of a female under the age of 15 years, with or without her consent, and with or without the promise of marriage; and it becomes immaterial whether prosecutrix thought defendant was a married man. The question of marriage is not an issue in this case. We held in Smith v. State, 5 Texas Ct. Rep., 372, it was reversible error for the court to permit the State to prove defendant was a married man. Clearly such testimony would not be admissible for defendant. The seventh bill complains that "defendant offered to prove by witness J.H. Herring as follows: `Q. While Mattie Lou Roberts was before you as justice of the peace, did you observe her general appearance, manner and conversation, her height, etc.? A. Yes, sir. Q. Did you observe her closely? A. Well, no; I do not know that I did. Q. With reference to her age, did you observe her closely? A. Yes, sir. Q. In your best judgment, based on the observations you made of her there, what is the girl's age?' To which counsel for State objected, and the court sustained said objection, and refused to permit said question to be answered by said witness." The court appends this qualification: "I wish to add to this bill my reason for the above ruling. The prosecutrix was before witness Herring in May, 1903. She was on the stand as a witness, and the jury could judge of her age from her appearance, it seemed to me, as well as the witness. I allowed the defense to prove by witnesses who had seen and observed prosecutrix, years ago, how old they then took her to be, but sustained the objection to the testimony on the ground that witness was not an expert and had seen witness only a few months before the trial." Similar testimony was "offered by the defendant" from witnesses Keller and Read as shown by bills numbers 10 and 11. Each of these bills state the defendant "offered to prove." Neither of the bills state what the witness would have answered as to prosecutrix's age. So all the bills are defective. However, we do not desire to be understood as holding it would not be proper for witness to testify as to the physical appearance, physical development and apparent age of prosecutrix at any time during the pendency of the prosecution. It is true, as the learned trial judge says, the testimony of *Page 327 witness as to the physical appearance of prosecutrix prior to the prosecution is admissible, but we can not agree to the proposition that a witness who had observed the physical development of prosecutrix could not take the stand and testify to his opinion as to her age. Suppose a prosecution is pending against an accused for rape upon a child under 15 years of age, and the testimony of the State is based solely upon the opinion of witnesses as to the age of prosecutrix, and there is no positive testimony going to show her age; that is, no witness testified he was present at the birth of prosecutrix. Clearly, under such a condition, the State would be permitted to put witness on the stand to testify, from the general development and general appearance of prosecutrix, as to her age. This being true, it follows that the defense could controvert this by similar testimony. In this character of prosecution testimony of this sort would necessarily be resorted to pro and con in order to establish or refute the case. But the bills before us are defective, inasmuch as the answers of the witnesses as to their opinion of the age of prosecutrix are not given, and we are left to conjecture to say what the answers would have been. By a long line of authorities it has been held we are not permitted to indulge presumptions to make bills of exception perfect.
Bill of exceptions number 3 complains of the following: While prosecutrix Mattie Lou Roberts was on the stand she was asked: "When had you become engaged to marry defendant? A. The Sunday before May 17, 1903." To which appellant objected as to all the testimony of witness as to whether defendant had agreed or promised to marry her, because the same is immaterial, irrelevant and calculated to prejudice the rights of defendant before the jury. The court appends this explanation: "The above testimony was given after prosecutrix had testified, without objections, that she was engaged to be married to defendant at the time he had the carnal connection with her; when the question was asked defendant's counsel made the objection. There was no request to withdraw, or motion to exclude the evidence already in, but the exception as above stated." Under the explanation of the court we do not think there was any error in the ruling, even if it be conceded that the testimony is of a prejudicial character. However, we do not think it is.
By bill number 8 it is shown: "The State offered to prove the following facts by witness Mattie Lou Roberts: `Q. Had defendant ever called on you before? A. He had been to our house once before. Q. What had he said to you up to that time? A. He wanted me to marry him. Q. What did he say, whether or not that he loved you? A. He said he loved me. Q. State whether or not you had consented to marry him? A. Yes, sir; I had. Q. What did he say, if anything, to you about being married? A. He said they all said he had been married, but he had not. Q. Did you believe what he said about that? A. Yes, sir.' To all of which defendant objected, because this is a prosecution for rape on a female alleged to be under the age of 15 years and not a prosecution predicated on force, threats or fraud; and because immaterial, *Page 328 irrelevant and calculated to prejudice the rights of defendant before the jury." It will be observed that this eighth bill says, "The State offered to prove." There is no certificate by the judge that such facts were proven, unless we indulge the presumption, which we will not do. This bill being defective, the same can not be considered.
Bill number 13 complains of the court's refusal of the following special charge, to wit: "You will not consider the language of the district attorney for any purpose where he tells you that the defendant was running with John Wood, a rapist. John Wood is now under sentence to the penitentiary for a term of fifteen years; birds of a feather will flock together." Defendant objected to this argument of counsel at the time it was made, and the court having declined and refused to give said instruction, defendant excepted. The court appends the following explanation to the bill: "Defendant, when on the stand as a witness, testified that he had known John Wood for three or four years, and that he was in company with him at the oil mill the night of the alleged rape, after he, defendant, left the house of old man Ledwell's; and that he again, about midnight, met Wood in front of Wood's house, and there had a conversation with him, and that he (defendant) then went to the room of prosecutrix, and after staying there twenty minutes, took prosecutrix in her night clothes across the street to a vacant house, and there met Wood with Amanda Ledwell; and they remained there for two or three hours; that Woods had been convicted at this term of the court for rape in three cases, and sentenced. This testimony was given by defendant without objections. When the district attorney referred to it in his argument to the jury, counsel for defendant approached the court and stated that he would take a bill to the argument; and then inquired of the court if there was any testimony to that effect. The court informed counsel that defendant had so testified. Counsel said no more, did not ask that the testimony be withdrawn, or that district attorney be prevented from using the argument, and I refused to give the charge because the evidence was in the record without any objection." In view of the qualification of the court there was no error in this ruling. There was no error in the court's action overruling the application for continuance as shown by the record before us.
No reversible error appearing in the record, the judgment is affirmed.
Affirmed.