Appellant was convicted in the District Court of Orange County of rape alleged to have been committed upon a female under fifteen years of age, and his punishment fixed at fifteen years in the penitentiary.
The facts will sufficiently appear in the opinion. Appellant asked an instructed verdict of not guilty, which was correctly refused. Prosecutrix, a girl eleven years old at the time of the trial, testified positively to acts of intercourse with appellant. Several doctors who examined her bore witness to the fact that her female organs were very much enlarged, and that she had apparently been penetrated by something, which, they said, could have been the male organ of a man. This clearly took the case to the jury for their decision.
The court below refused appellant's special charge No. 4, which is as follows: *Page 514
"You are instructed that if you find from the evidence in this case, that the physicians who testified in the case, found the female organ of Thelma Johnson unduly enlarged, that said finding was made by examination of the aforesaid physicians several weeks after this offense is alleged to have been committed, and the enlargement of the private parts of the said Thelma Johnson could reasonably have been caused by self-abuse, or by a person or persons, other than the defendant, you will not consider the circumstances that her private parts were so enlarged, as a circumstance against the defendant."
That this was on the weight of the evidence is apparent. The fact that the physicians did not examine the child for some weeks after the alleged rape, would not remove the condition found by them to exist, from the jury's consideration.
"Under the facts of the instant case there was no error in the court's statement to the jury that rape was the carnal knowledge of a female under the age of eighteen years, not the wife of the accused, with or without her consent." It is true the indictment herein charged that the age of the female in question was under fifteen years. If there had been any question in the case raised as to the age of prosecutrix, and any suggestion in the testimony that she was over fifteen but under eighteen years of age, as was the case in Young v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 414, cited by appellant, it might have been erroneous for the trial court to define rape as was done in the instant case. An examination of the record herein, however, shows without suggestion of contradiction, that the girl in question was but eleven years of age at the time of the trial. The definition of rape in the court's charge was in accord with that now made by our statute, and while not in exact accord with the age as fixed in the indictment, it could not possibly have been prejudicial to appellant to state the definition of rape as given to the jury by the court.
It is not a good objection to the admissibility of testimony of a physician who examined the child, that while same took place after the alleged rape, the date could not be stated with accuracy, he having nothing present to enable him to fix the exact date.
In his motion for new trial appellant complains of the fact that the jury were not kept together during the trial, and that they discussed with each other the facts of the case prior to the submission of same to them by the charge of the court. Appellant's motion was sworn to, and attached thereto was the affidavit of one of his counsel, who stated in substance that after the jury was impaneled and sworn they were separated and out of the presence and hearing of each other, and scattered in and around the courthouse of Orange County, and that there were other and various persons in said courthouse and yard, and that the jurors could have discussed the merits of the case, or other matters, with such other persons. The paragraph of said motion referred to and the matters sworn to by appellant's counsel were controverted by the State, and attached to such counter affidavit are the *Page 515 affidavits of two deputy sheriffs who had charge of the jury during the trial, and who state that during the entire time the jury were not at any time separated, and that they could not and did not talk to or discuss said cause with any other person during said trial. Appellant's bill of exceptions complaining of this matter is qualified by a statement of the trial court to the effect that each of the jurors who tried said cause was summoned as a witness and in attendance upon the hearing of appellant's motion for new trial as well as Mr. Foyle, the deputy sheriff who had them in charge, and the attorney for appellant whose affidavit was attached to said motion for new trial, and that upon said hearing of said motion the court gave to appellant full opportunity to present any evidence which he might desire in support of said ground of his motion for new trial, but appellant's counsel declined to offer further testimony than to submit to the court the affidavit theretofore made by his attorney; that thereupon the State offered in evidence the affidavit of the two deputy sheriffs above referred to. In this condition of the record, no testimony having been adduced from any of the jurors who were present in court at the hearing of said motion for new trial, to substantiate the fact of their separation, or communication with other persons, it appears to us that appellant's complaint is without merit, and that the controverting affidavits of the State which were before the court and considered by him, were sufficient to overcome theprima-facie case made by the affidavit of appellant and his counsel, and that the trial court did not err in refusing appellant a new trial in that condition of the record. There is no separate statement of the facts adduced before the trial court upon the hearing of said motion, and nothing pertaining thereto save the affidavits and the matters contained in the bill of exceptions, which is qualified as stated.
We find nothing in the special charges asked by appellant to call for their submission to the jury by the trial court. It would have been improper for the court to submit to the jury the issue as to whether prosecutrix was under persuasion at the time she appeared before the grand jury which returned the indictment. The jury trying the case were only concerned with the testimony of the witness as adduced before them.
We regret our inability to agree with learned counsel's contention that the evidence is not sufficient to support the verdict. It is true that the prosecutrix was but eleven years of age at the time of the commission of the offense, and only in the fourth grade in school, and did not seem to understand very clearly the nature of her oath, nor the enormity of the offense charged against appellant, and it may be that she had not been well taught in regard to the morals of the matter involved, but her evidence makes out with sufficient cogency to justify the jury in their conclusion of guilt, the fact that appellant had intercourse with her. The testimony of various parties who said they had seen the continued intimacy of the children with appellant in his home and at other places, and had never observed any undue familiarity or *Page 516 anything apparently wrong in such association, was before the jury for their consideration as was the denial of the facts alleged, on the part of appellant. These were all matters of fact which were submitted to the jury and by them decided against appellant, and we have before us no evidence of passion or prejudice on the part of the jury, and their view of the proper way to reconcile the conflicts in the testimony is not for us to controvert.
Finding no reversible error in the record the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. January 11, 1922.