
    TENNEL v. STATE.
    (No. 3868.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    1. Rape <&wkey;27 — Information—Suppiciency.
    An indictment charging that defendant had carnal knowledge of a female under the age of 15 years, not being his wife, was good as an indictment for rape upon a female under the age of consent.
    LEd. Note. — For other cases, see Rape, Cent. Dig. § 31; Dec. Dig. &wkey;27.]
    2. Criminal Law <&wkey;lllE-REViEw — Bill op Exceptions — Sueeicienoy op Evidence.
    Where the charge in a criminal case was not objected to on the trial and before it was read to the jury, as required by the statute, and there were no bills of exception in the record, the sufficiency of the evidence was the only question presented to the Court of Criminal Appeals for review.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. <&wkey;> 1114J
    3. Rape &wkey;>51 — Sufficiency op Evidence.
    Evidence, in a prosecution for statutory rape, held sufficient to sustain a conviction.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. <&wkey;51J
    4. Criminal Law <&wkey;114A-PRESUHPTiON on Appeal — Competency op Witness.
    In the absence of a proper bill of exceptions, showing that a girl 5 years of age, herself present and claiming to have been raped, testifying in a prosecution for statutory rape, did not possess sufficient intellect to relate the transaction, or that she did not understand the obligation of an oath, it would be presumed that she was competent to testify.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dee. Dig. &wkey;1144J
    5. Witnesses <&wkey;40 — Competency — Discretion op Trial Court.
    The admission of her testimony was properly within the sound discretion of the trial court.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. &wkey;40.]
    6. Criminal Law <&wkey;365 — Evidence — Res Gestas.
    In a prosecution for rape of prosecutrix, who was 6 years old, in the presence of another girl 5 years old, who was also then and there raped by accused, the testimony of the 5 year old girl as to the rape committed upon her was admissible as a part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 807; Dec. Dig. <S=w365.]
    7. Criminal Law <&wkey;673 — Instructions — Limiting Evidence.
    Such evidence being a part of the res gestae, the court was not called upon to limit it in his charge to the jury.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. &wkey;673.]
    8. Criminal Law <&wkey;1160 — Question op Fact — Suppiciency op Evidence — Review.
    When the jury have determined the issues presented by the evidence under a fair charge and there is sufficient evidence in the record, if believed, to support a conviction and it is approved by the. trial judge, required to set it aside, if not satisfied of the guilt of the accused, it will not be set aside on appeal unless clearly wrong.
    [Ed. Note. — For other .cases, see Criminal Law, Cent. Dig. § 3084; Dee. Dig. ®=>1160.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Henry Tennel was convicted of statutory rape, and he appeals.
    Affirmed.
    John I-I. Crooker, Cr. D5st. Atty., T. J. Harris and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

“This is an appeal from a conviction assessing the death penalty for rape. The indictment is as follows:

“ ‘In the name and by authority of the state of Texas. The grand jury of Harris county, state of Texas, duly organized at the August term, A. D. 1915, of the Criminal District Court of said county, in said court, at said term, do present that Henry Tennel, on the 2d day of September, A. D. 1915, in said county and state, did have carnal knowledge of Wilmay Olaybourn, a female then and there under the age of 15 years, and then and there not being the wife of the said Henry Tennel. Against the peace and dignity of the state.

“ ‘Jno. C. Penn, Foreman of the Grand Jury.’

“This is the' form of indictment for rape upon a female under the age of consent laid down in section 1768 of Branch’s Penal Code, which is now in press, and was so framed as to avoid alleging more than was necessary to be proven, while averring all that was necessary to be proven, under the suggestion and according to the rules of law laid down by this court in Fowler v. State, 148 S. W. 576.

“The charge of the court required the jury to find beyond a reasonable doubt the truth of what was alleged, and the charge of the court was not objected to on the trial and before it was read to the jury, as required by the statute of this state, and there are no bills of exception in the record. The sufficiency of the evidence is the only question presented for review.

“The mother of the child who was raped testified that the little girl was 6 years old (tr. p. 1) and was not married to any one (tr. p. 2), and the child herself testified that she was 6 years old (tr. p. 11), and this was shown without controversy.

“On September 2, 1915, appellant rented a rubber-tired buggy and was driving a sorrel horse. Tr. p. 14. Prosecutrix had gone to the house of a woman named Ella Culver to stay while her mother went up town. Appellant was there and drank some beer, and aft-erwards took prosecutrix and another little girl, who was 5 years old, in his buggy and went down to the bayou with them. Both prosecutrix and the other little girl testify positively and in terms that appellant penetrated their private parts with his male member while down on the bayou. Appellant was seen by other witnesses on the road to the bayou with the little girls driving the rubber-tired buggy. About two hours after appellant had left with the two babies, they came home crying, bleeding, and showing the effects of beating and choking. Prosecutrix was immediately taken to the office of the county physician, and there examined by him. He testifies to facts corroborating their account of what had happened to prosecutrix. No useful purpose would be served by setting out the details of his examination, but it shows (tr. pp. 10, 11) that terrible force was used on her sexual organ, and that she was otherwise mistreated with physical violence. The testimony of prosecutrix shows unusual intelligence for a child of 6 years, and there is nothing in her testimony which is contrary to human experience or inconsistent with the truth. In the absence of a proper bill of exceptions, showing that the child did not possess sufficient intellect to relate the transaction, or that she did not understand the obligation of an oath, it will be presumed that she was competent to testify. Moore v. State, 49 Tex. Cr. R. 449, 96 S. W. 327; Hunger v. State, 57 Tex. Cr. R. 384, 122 S. W. 875. The admission of a child’s evidence is properly within the sound discretion of the trial court. McCormick v. State, 52 Tex. Cr. R. 495, 108 S. W. 669; Zunago v. State, 63 Tex. Cr. R. 58, 138 S. W. 713, Ann. Cas. 1913D, 665; Brown v. State, 176 S. W. 51.

“After appellant had taken the witness stand and testified to being at the house from which the children were taken and had denied that he took them or raped the prosecutrix, the state, on rebuttal, introduced the other little girl, who testified without objection to the rape on her and on prosecutrix, corroborating the testimony of prosecutrix in every substantial detail, and the testimony of the two little children was given in such a manner as to leave no doubt of its truth, and, when taken in connection with the other testimony, there is no room for doubt that appellant was guilty of the terrible outrage upon these babies. The testimony of the younger child was admissible, as it was a part of the res gestee, and, being a part of the res gestee, the court was not called on to limit it in the charge to the jury.

“As was said in the recent case of Edwards v. State, 181 S. W. 195, decided by this court on December 1, 1915: ‘When the jury have solved the issues presented in the testimony under a fair and proper charge of the court, and there is sufficient evidence in the record, if believed, to support the verdict of guilty, and that verdict is approved by the trial judge whose duty it is to set the conviction aside if not satisfied of the guilt of the accused, the verdict will not be set aside (on the facts) on appeal unless clearly wrong.’

“Nothing whatever is shown by this record that reflects upon the fairness of the trial, and as far as human testimony given in human tribunals can demonstrate the guilt of the accused, this has been done. The learned judge who presided over the trial and who charged the jury fully and fairly has approved the verdict, the testimony amply warrants the verdict of the jury, and indeed from this record it is improbable that any honest jury would or should have found a different verdict.”

We have adopted the above brief as the • opinion of the court, as it so fully discusses the case. There are no bills of exception in the record; consequently the only question we could review would be the sufficiency of the evidence to sustain the verdict; and, if the evidence in any case of rape would authorize the infliction of the death penalty, we think this one of those cases.

The judgment is affirmed. 
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