Ford v. State , 82 Tex. Crim. 639 ( 1918 )

Appellant was convicted of assault to rape, his punishment being assessed at two years confinement in the penitentiary.

It is more than questionable whether the evidence would support a conviction for assault to rape, but it is not intended here to discuss that phase of the record.

The indictment charged appellant with committing the assault upon a girl under fifteen years of age. The evidence does not show positively that prosecutrix is under the age of fifteen years, and does not directly show that she was not the wife of appellant. The record is silent, except by innuendo or inference, as to whether she was his wife. This matter ought to be made clear. No witness swore in the case that she was not the wife of defendant. This whole matter could have been settled by asking the prosecutrix, or her father, the plain question as to whether she was or was not the wife of defendant, which was not done. Perhaps it might be inferred by putting one presumption upon another that she was not the wife of appellant, but matters of this sort should not be left to vague inference and deduction. The father testified that the prosecutrix was born on the 27th of October, 1903. The girl did not know her age. The enumerator or census taker of school children took the affidavit of the father of prosecutrix to the ages of his children, in which the father stated prosecutrix was born on the 27th of October, 1902. This was permitted to go to the jury. Appellant then proposed to prove from the same document and over the same oath by the father that he stated the next child was born in April, 1903. The court would not permit this to go to the jury. In this we think there was error. From the 27th of October to some day in April is rather a short interregnum for the birth of two children. If they were twins the deliverance was a long ways apart. This testimony should have gone to the jury; if not as original testimony, as impeaching evidence.

Appellant also offered the register of the birth and baptism of the girl in St. Joseph's church in Oklahoma. This was in accord with the church custom, the supposition being that the people were Catholic. The record would have shown and is properly verified, that the girl was born on the 27th day of November, 1901, and that she was baptized on the 29th day of December, 1901. When this testimony was offered the court declined to hear it, and exception was reserved. In this we think the trial court was in error. See Howard v. Russell, 75 Tex. 171; 5 Peters, U.S. Rep., 470; 8 Am. St. Rep., 855; Garrett v. State,42 Tex. Crim. 521. This testimony should have gone to the jury. The father had sworn that the girl was born in October, 1903, in Oklahoma, and had sworn in an affidavit furnished the enumerator of school children that she was born the 27th of October, 1902. The baptismal record of his church shows that she was born on the 27th day of November, 1901, and baptised on the 29th day of December, 1901. This testimony bore directly and strongly upon the question of age. The indictment charged she was under fifteen years. This evidence would have shown, if she was born in 1901 as this record would indicate, that she was beyond the age of fifteen, and appellant could not be convicted under this indictment. It is deemed unnecessary to discuss the evidence.

The judgment is reversed and the cause remanded.

Reversed and remanded.