
    HAYWOOD v. STATE.
    (Court of Criminal Appeals of Texas.
    April 6, 1910.
    On Motion for Rehearing, Feb. 8, 1911.)
    1. Criminal Law (§ 761) — Instructions— Presumption oe Fact.
    In a prosecution for rape, an instruction that if at the time prosecutrix was “under the age of 15 years and was not the wife of defendant, you will find the defendant guilty of rape as charged,’’ does not assume that prosecutrix was under the age of 15 years, or that she and the defendant were not married.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 175^-1764; Dec. Dig. § 761.]
    2. Criminal Law (§ 398) — Evidence—Secondary Evidence — Pedigree—Hearsay.
    Where the father of prosecutrix testified in a prosecution for rape as to her age, an entry of the date of her birth made by him in an ordinary ledger is inadmissible as secondary evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 398.]
    3. Criminal Law (§ 1169) — Harmless Error— Admission oe Evidence — Age.
    In a prosecution for rape, where there is no issue as to the age of the prosecutrix, the erroneous admission of secondary evidence of her age is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cqnt. Dig. §§ 3137-3143; Dec. Dig. § 1169.]
    On Motion for Rehearing.
    4. Jury (§ 116) — Jury List — Summoning— Diligence.
    The mere absence of veniremen, without any showing of a want of diligence to secure their attendance, is not ground for quashing the venire.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 542, 543; Dec. Dig. § 116.]
    
      5. Jury (§ 120) — Motion to Quash — Grounds — Evidence.
    Under a motion to quash a venire “because ■out of 100 names herein drawn only 17 of said •special venire are present in court,” evidence going to show that the officer’s diligence in summoning the venire was not sufficient is not admissible.
    [Ed. Note. — For other cases, see Jury, Dec. Dig. § 120.]
    6. Grand Jury (§ 34) — Participation oe Prosecuting Attorney — Statutes.
    Under Code Or. Proc. art. 414, the county attorney may be present at all times when the grand jury is not deliberating or voting upon a bill of indictment.
    [Ed. Note. — For other cases, see Grand July, Dec. Dig. § 34.]
    Appeal from District Court, Grayson County; B. D. Jones, Judge.
    Dock Haywood was convicted of rape on a girl under 15 years, and he appeals.
    Affirmed.
    C. Huggins and J. P. Cox, Jr., for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rop’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of rape on a girl under 15 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 exceptions No. 1.

2. In bill of exceptions N'o. 2 it is urged that parties not authorized 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 15 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 eharge assumed that fact. We are of opinion that it does not assume the fact that they were not married or that she was .under the age of 15 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 prosecu-trix 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 prosecu-trix, 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 date 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 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 contem-porarily 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 28th, 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 ease of Rowen v. State (decided at the present term of court) 57 Tex. Cr. R. 647, 124 S. W. 668. 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 Rowen 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 15 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 15 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. 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.

On Motion for Rehearing.

HARPER, J.

At .the last term of this court the judgment herein was affirmed. Motion for rehearing is filed setting up several grounds why the affirmance was not correct.

1.It is contended the motion to quash the venire should have been sustained. That question was not decided in the former opinion. However, we do not believe, as it is presented, there is any merit in the motion. The ground of the motion is in this language: “Because out of the 100 names herein drawn only 17 of said special venire are present in court.” The absence of veniremen is not a ground for quashing the venire. The case of Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822, and Logan v. State, 54 Tex. Cr. R. 74, 111 S. W. 1028, are cited in support of that proposition. These cases are not in point. In each of those cases the motion was made to quash the venire and service, among other things, because the officers did not exercise diligence in summoning the jurors. But that ground is not suggested here. So far as this motion is concerned, every juror may have been summoned or the diligence of the officer may have been complete. None of these matters were set up in the motion. There was some evidence, however, introduced to the effect that the diligence may not have been sufficient, but under the-ground stated in the motion this testimony was not germane. There was no ground set up that would have justified the attack on the officer’s manner of summoning the jury or the diligence used by him.

2. It is insisted the court was in error in holding that the age of the prosecutrix, was not an issue in the case. We have reviewed the testimony bearing upon this question again in order that we might ascertain whether or not we were wrong. The father testified to the age of the girl, placing her under 15 years of age, and the family physician who was present at her birth stated: that she would be 15 years old the coming summer. This is the substance of the evidence introduced except the introduction of the ledger about which the complaint was made in the bill of exceptions. We are still of opinion that as there was no contest as to the age of the girl, that the admission of this erroneous testimony was not of sufficient importance to require a reversal. Where the age becomes an issue this character of testimony is no.t only erroneous, but would be reversible, as held in the Rowen Case cited in the original opinion.

3. Another contention is made that the former opinion is incorréct in hofding that the assistant county attorney was not present while the grand jury were deliberating upon their finding. We have re-examined the record carefully, and read it in the light of the decisions of this court in the case of Stuart v. State, 35 Tex. Cr. R. 440, 34 S. W. 118, and Sims v. State, 45 S. W. 705. It is true-that Judge Henderson fn the case of Stuart v. State, supra, in rendering the opinion, uses language that might be construed to-rnean if the county attorney was present during the “deliberations and investigations”' of a grand jury, the indictment would be quashed, but that was not the real holding, and in a later opinion the same judge states-clearly what he meant and held in that case. In Sims v. State, supra, Judge Henderson, in discussing the Stuart Case, says: “We have-heretofore held that whenever the record discloses the fact some person not authorized by law Was present when the grand jury was deliberating upon the accusation against the defendant, or voting on the same, the statute was mandatory. In that case we discussed what was.meant by the phrase ‘deliberating upon the accusation against the defendant,’ and we there held, in accordance with definitions, that ‘deliberating” meant the act of weighing and examining the reasons for and against finding a bill; that is, discussing and examining the reasons' for and against the proposition of finding a true bill.”

The decision of Sims v. State is in line with article 414 of the Code of Criminal Procedure which reads: The attorney representing the state may go before the grand jury at any time, except when they are discussing the propriety of finding a bill of indictment or voting upon the same. Construing this article in connection with the provision of article 559, which provides grounds for quashing an indictment, “that some person was present not authorized by law when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same,” the meaning of the two articles are clear that the county attorney may be present at all times except when the grand jury is deliberating upon whether or not they will return a bill of indictment or voting on same.

The record in this ease does not affirmatively show that he was present at either of said times, and upon hearing the matter the district judge finds that he was not present when the grand jury were deliberating upon whether or not they would return a bill of indictment or voting on the question.

The motion for rehearing is overruled, and the judgment affirmed.  