Rix v. State (135 S.W. 150, 1911)

DAVIDSON, P. J.

Appellant was convicted for rape on a girl under 15 years of age; his punishment being assessed at five years in the state penitentiary.

The amended motion for new trial sets out, first, that the verdict of the jury is contrary to the evidence, and that it was obtained in such a manner that it ought not to stand. The motion does not allege corruption or intentional misconduct on the part of the jury, hut that the misconduct is more in the nature of a místate. The serious question in the case is the age of the prosecutrix, and around this fact hang both propositions insisted upon by appellant. The prosecutrix testified that at the time she was testifying she was Í4 years old “this last gone December.” This would make her 14 years of age in December, 1909. If this testimony is to he credited, she waS bórn in- December, 1895. The intercourse, she says, was had in 1908, and to her was born a child in July, 1909% She knew nothing of her age, except as told’ her by her parents. Georgia Turner, mother of prosecutrix, testified on the trial that the prosecutrix was born in December, 1896, in Palestine, Anderson county. She was put through rather a rigid cross-examination, and it is shown that she told Mr. Lloyd, in an interview in his office, that the prosecu-trix was born in 1892. She subsequently told the same witness that the prosecutrix was born in 1893.

Lloyd’s testimony in this respect is substantially as follows: That Georgia Turner came to his office and said something about this case and the law. “She first told me the girl was born in 1892, and then she after-wards told me she was born in 1893.” He says he then informed her the girl was too old, and gave her the date she swore to on the trial, the 14th day of December, 1896, ■or the 18th day of December, 1896, and he says he told her that if the girl was of that age defendant had violated the law. That is the date the witness says he gave her, and that is what she swore to on the trial. He further testified that she did not know anything about prosecutrix’s age, and the father ■did not know anything about it. The court ruled out the statement of the father as not being evidence. The prosecuting officer, ■on cross-examination, asked this witness if, after he got the witness in his office, he had not trapped her, and if he had not made the •statement that he had trapped her. The witness said he did not think he made any such ¡statement, but used that expression in speaking to the justice of the peace; that he did not use any expression at all that he had trapped them, but did use a statement to "the justice of the peace, but which was inadmissible. The state was willing for it to •come, and the witness said: “Well, T was talking to the justice of the peace before they filed complaint one day, and I told him ■that I had given them a date, and I was satisfied they were going to use that to trap "this defendant with.” This was the testimony of Mr. Lloyd.

Kathryn Hodges fixed the birth of prose-cutrix at some time before August, 1896, and "that the prosecutrix was then a child at her mother’s breast. Prof. Buck fixes the age of prosecutrix by the scholastic census rolls which began September 1, -1904, and ran to August 31, 1905, as being nine years of age at that time. Capt. S. P. Allen, who took a scholastic enumeration, fixes the date of the prosecutrix’s birth as December 15, 1892. This scholastic census age was sworn to, so far as the age of prosecutrix was concerned, by her mother, the witness Georgia Turner. •Roberson, a schoolteacher, says that the prosecutrix was attending school in 1902, and was then seven or eight years of age. Martha Thompson says that prosecutrix was a scholar in 1902-03,.nine years of age. Mr. Andrews, in his census report of the scholastic children, shows that Georgia Turner, mother of prosecutrix, gave prosecutrix’s birth as having occurred on September 11, 1892, and a succeeding daughter, Blossie Turner, as having been born December 26, 1896. Mr. Allen, in his census report, shows .that Georgia Turner, mother- of Pearlie Turner, prosecutrix, gave the age of prosecutrix as having been born on December 15, 1892. This report occurred in May, T905. He also gives the age of Blossie May Turner in this report, giving the date of her birth as December 25, 1896. These ages were sworn to by Georgia Turner, mother of prosecutrix. The scholastic age taken by Mr. Andrews was in 1909, and Georgia Turner .in that'report swore on the 11th day of May, 1909, that Pearlie Turner, prosecutrix, was born September 11, 1892, an