Wilcox v. State ( 1893 )

DAVIDSON, Judge.

Appellant having been convicted of rape, was given the death penalty, from which he prosecutes this appeal.

Under the evidence adduced, it is contended, that the defendant is under 17 years of age, and hence not subject to capital punishment. The offense was committed in July, 1892. Unless he was bom prior to July, 1875, he could not be 17 yearsold at the date of the offense. In regard to this issue, his mother testified, that she was, at the date of the trial, 31 years of age; that defendant was born on November 10, 1877; that he was 16 at the date of his trial; that she was married on the Ware place, and she thinks this occurred in 1876; that defendant was born subsequent to her marriage; that she gave defendant to Dan Murphy in 1883, when he was 6 years old.

George Wilcox stated, he had known defendant since his birth; that he was born on the Ware place; that he thought the defendant was about 16 years old; that he was of illegitimate origin; that he thought he “was a living child at the time of his mother’s marriage. * * * I think defendant was born about 1877; was about 6 years old when turned over to Murphy. I might miss his age a year or two. I moved to the Ware place in 1873. Was there about four years before defendant was born. Don’t think he can be as much as 16 years old.”

Defendant was born on Ware’s place. Sheffield said he had known defendant “ nine or ten years. Have lived near him, and was living with Dan Murphy when I first knew him. Don’t know how long he lived with Murphy at that time.”

Dan Murphy testified, that he had “known defendant for nine years, and partially raised him. He looked to be five or six years old when I first knew him, about nine years ago, which would make him about 15 years old. He was given to my wife by his mother.” The gift occurred during the year 1883. In rebuttal, the State proved that the mother told the sheriff that defendant was born about April 27, 1877. This is the evidence in the record in regard to the age of defendant. Otherwise than the statement of the mother to the sheriff, it is uncontradicted. Murphy said he was born at the time of his mother’s marriage. He also testified that he had known him for only nine years, and he was then five or six years old. His means of knowledge that he was illegitimate is not disclosed by him. There is an unexplained interregnum of five or six years in regard to this witness’ testimony. George Wilcox only thought he “ was a living child at the time of the marriage,” and yet thought defendant was born about 1877. The circumstances detailed by him exclude the idea that his birth could have occurred anterior to 1877. As presented to us, there is no testimony showing that he was born as early as 1875. His mother, at date of trial, November, 1892, was only 31 years of age. This fact stands uncontradicted. If this be true, she was only 15 when defendant was born. From this unusual occurrence the presumption is very strong that appellant was not 17 years of age when he committed the crime, if in fact he is guilty, especially when the State does not undertake to contradict the mother on this point, or endeavor to show that the mother was very young when defendant was born. The evidence, as furnished by the record, shows that defendant was under 17 years of age at the time of the commission of the crime charged against him. The Reporter will report the evidence.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

Hurt, P. J., concurs.