At the last term of this court the judgment *Page 96 herein was affirmed. Motion for rehearing is filed setting up several grounds why the affirmance was not correct.
1. It is contended the motion to quash the venire should have been sustained. That question was not decided in the former opinion. However, we do not believe, as it is presented, there is any merit in the motion. The ground of the motion is in this language: "Because out of the 100 names herein drawn only 17 of said special venire are present in court." The absence of veniremen is not a ground for quashing the venire. The cases of Horn v. State, 50 Tex.Crim. Rep., and Logan v. State,54 Tex. Crim. 74, are cited in support of that proposition. These cases are not in point. In each of those cases the motion was made to quash the venire and service, among other things, because the officers did not exercise diligence in summoning the jurors. But that ground is not suggested here. So far as this motion is concerned, every juror may have been summoned or the diligence of the officer may have been complete. None of these matters were set up in the motion. There was some evidence, however, introduced to the effect that the diligence may not have been sufficient, but under the ground stated in the motion this testimony was not germane. There was no ground set up that would have justified the attack on the officer's manner of summoning the jury or the diligence used by him.
2. It is insisted the court was in error in holding that the age of the prosecutrix was not an issue in the case. We have reviewed the testimony bearing upon this question again in order that we might ascertain whether or not we were wrong. The father testified to the age of the girl, placing her under 15 years of age, and the family physician who was present at her birth stated that she would be 15 years old the coming summer. This is the substance of the evidence introduced, except the introduction of the ledger about which the complaint was made in the bill of exceptions. We are still of opinion that as there was no contest as to the age of the girl, that the admission of this erroneous testimony was not of sufficient importance to require a reversal. Where the age becomes an issue, this character of testimony is not only erroneous, but would be reversible, as held in the Rowan case cited in the original opinion.
3. Another contention is made that the former opinion is incorrect in holding that the assistant county attorney was not present while the grand jury were deliberating upon their finding. We have re-examined the record carefully, and read it in the light of the decisions of this court in the case of Stuart v. State, 35 Tex.Crim. Rep., and Sims v. The State, 45 S.W. Rep., 705. It is true that Judge Henderson in the case of Stuart v. The State, supra, in rendering the opinion, uses language that might be construed to mean if the county attorney was present during the "deliberations and investigation" of a grand jury, the indictment would be quashed, but that was not the real holding, and in a later opinion the same judge states clearly what he meant and held in that case. In Sims v. The State, supra, Judge *Page 97 Henderson, in discussing the Stuart case, says: "We have heretofore held that whenever the record discloses the fact some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant, or voting on the same, the statute was mandatory. In that case we discussed what was meant by the phrase `deliberating upon the accusation against the defendant,' and we there held, in accordance with definitions, that `deliberating' meant the act of weighing and examining the reasons for and against finding a bill; that is, discussing and examining the reasons for and against the proposition of finding a true bill."
The decision of Sims v. State, 45 S.W. Rep., 705, is in line with article 414 of the Code of Criminal Procedure, which reads: The attorney representing the State may go before the grand jury at any time, except when they are discussing the propriety of finding a bill of indictment or voting upon the same. Construing this article in connection with the provision of section 559, which provides grounds for quashing an indictment, "that some person was present not authorized by law when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same," the meaning of the two articles are clear, that the county attorney may be present at all times except when the grand jury is deliberating upon whether or not they will return a bill of indictment or voting on same.
The record in this case does not affirmatively show that he was present at either of said times, and upon hearing the matter the district judge finds that he was not present when the grand jury were deliberating upon whether or not they would return a bill of indictment or voting on the question.
The motion for rehearing is overruled and the judgment affirmed.
Affirmed.