Appellant was convicted of rape on a girl under fifteen years of age and given a life sentence in the penitentiary.
1. Several questions are presented for revision which we deem unnecessary to discuss. The matter with reference to summoning the jury may not occur upon another trial. This matter is set out in bill of exception No. 1.
2. In bill of exception No. 2 it is urged that parties not authorized *Page 94 to be before the grand jury while they were deliberating upon finding the bill, were present. We are of opinion the evidence on this question does not show such to be a fact. The county attorney and two of the assistants were with the grand jury at different times while that body had the witnesses before them, but none of them were present at the time they were deliberating or voting upon the question of finding the bill of indictment, nor does the evidence support the other contention in the bill — that the indictment was found by less than nine grand jurors. We find no reason for reversing the judgment upon that bill of exceptions.
3. Bill No. 3 suggests that the evidence is not sufficient to show that the prosecutrix was under fifteen years of age and not the wife of the defendant. This applies to the charge of the court which is as follows: "And if you further believe from the evidence beyond a reasonable doubt that at said time the said Bertha Stacy was under the age of 15 years and was not the wife of defendant, you will find the defendant guilty of rape as charged in the indictment and assess his punishment at death," etc. The objection to this charge was that the evidence did not show that appellant and the prosecuting witness were not man and wife at the time of the alleged transaction and that the charge assumed that fact. We are of opinion that it does not assume the fact that they were married or that she was under the age of fifteen years. In this connection in another contention it is urged that the evidence is not sufficient to show the girl was not the wife of the defendant. This is left as a matter of inference. The strongest evidence is to the effect that the father of the prosecutrix testified that she was single. We are not undertaking to hold here that this would be insufficient, but we suggest that in matters of this sort the statement of facts should show that the parties were not married. It is easily proved; the witnesses were on the stand and before the jury. Matters of this sort should not be left to inference where positive evidence is so easily accessible. We call attention to this so that matters of this character will not be left as questions of discussion on appeal.
4. By bill of exceptions No. 6 it is made to appear that S.W. Stacy, father of prosecutrix, was used in behalf of the State as a witness, and testified as follows: "This book I have in my hand has been in my possession since Bertha Stacy's birth; it is just an ordinary ledger. There is no dates in this book except on the page on which the entry of Bertha's birth is made, and that is on a page about the middle of the book. I made that entry myself; it is correct; I made it just after Bertha was born; the entry of Bertha's birth is about the center of the page, and the entry of Jewel's birth, who is also my child and younger than Bertha, is on the same page and above the entry made for Bertha; on the same page and below the entry made for Bertha's birth is the entry made for the date of the birth of another one of my children who is younger than Jewel. I don't know why I put the entry of Jewel's birth above the entry of Bertha's. The entry *Page 95 of the birth of the third child was placed below the entry of the other two that were older than it." The book was offered in evidence, to which defendant objected on the ground that the same was hearsay, not the best evidence, not a family record, entries not made contemporaneously with the births, and the book is not shown to have been in the custody of the witness during all of said time. The court overruled the objections, and the page of the book on which the entries were made was permitted to go before the jury, and was as follows: On the top of the page, "Jewel Stacy born July 11th, 1897." Entry on same page and below, "Bertha Stacy born June 28, 1894." On the same page and below this entry, "Martha Stacy born August 25th, 1900." To which action of the court in overruling defendant's objections and permitting the State to introduce said evidence before the jury the defendant then and there excepted on the grounds above mentioned. This testimony was inadmissible. We deem it unnecessary to discuss the matter further than to allude to the decision in the recent case of Rowan v. State, decided at the present term of court. In that case the authorities are collated and reviewed at considerable length by Judge McCord, who delivered the opinion of this court. In view of what was said in that decision and the thoroughness of the review of the authorities, we deem it unnecessary to discuss that question further. Under that decision the admission of this testimony is erroneous. However, the question then is, the evidence having been erroneously admitted, should it constitute cause for reversal of this judgment? After careful review of the matter, we are of opinion that it does not constitute such cause or reason. In the Rowan case, supra, the question of the age of the prosecutrix was a serious issue and of vital importance. The testimony in that case was conflicting as to whether the prosecutrix was over or under the age of fifteen years. Under that state of case it was held that the admission of similar evidence to this was illegal and important. In this case, however, the question of the age of the prosecutrix was not an issue, nor was there any evidence introduced, or contention made on the trial that she was fifteen years of age or over. The evidence clearly discloses that she was under that age. Had there been an issue as to that question, the admission of the evidence complained of in the bill of exceptions would have been reversible error. It is not the admission of all illegal evidence which would demand a reversal for its admission. We are, therefore, of opinion that under the circumstances of this case, there being no issue on the question of the age of the prosecutrix, and although erroneously admitted, the introduction of it is not of sufficient importance to require a reversal. Therefore the judgment is affirmed.
Affirmed.
ON REHEARING. February 8, 1911.