
    DODDY v. STATE.
    (No. 6731.)
    (Court of Criminal Appeals of Texas.
    March 8, 1922.
    Appeal Reinstated May 3, 1922.)
    1. Criminal law <§=>l 109(3) — Where caption does not show bills of exceptions filed in time, appeal dismissed.
    Where it was impossible to ascertain from the caption to a transcript whether the bills of exceptions and statements of facts were filed within time allotted by law. a motion to dismiss an'appeal will be granted.
    2. Bail <$cx>64 — Ap.peal dismissed where recognizance not in proper form.
    Where the recognizance in the record on appeal is not in, accord with Vernon’s Ann. Code Or. Proc. 1916, art. 903, but appears in the form for such recognizance for appearance in the trial court, it is not a proper recognizance for appearance, and the appeal will be dismissed.
    On Motion for Rehearing.
    3. Criminal law <§=400'(5) — Family Bihie inadmissible to prove jjrosecutrix’s age in rape case where her parents are witnesses.
    In a rape prosecution, in view of the presence and testimony of the father and mother of prosecutrix as to her age, the introduction in evidence of a family Bible showing the- age of the injured female, as there entered by her mother about the year 1908, when it appears prosecutrix was about three years old, was reversible error!
    Appeal from District Court, Morris County; R. T. Wilkinson, Judge.
    Harve Doddy was convicted of rape, and •he appeals.
    Reversed and remanded.
    Henderson & Bolin, of Daingerfield, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Morris county of the offense of rape, and his punishment fixed at five years in the penitentiary.

Our Assistant Attorney General has moved to dismiss this appeal because of the fact that the caption to the transcript is so defective in character as to make it impossible to ascertain whether the bills of exception and statement of facts were filed within the time fixed by law. The motion must be granted for this reason, and also because the recognizance is insufficient. The caption of the transcript, which appears to be an excerpt from the minutes of. the district court of Morris county, states that the trial term of the court began on the 11th of April, 1921, but nowhere states the length of time of said term, nor when same ended. The transcript appears to have been filed in the Court of Criminal Appeals on November 30, 1921, and the certificate of the clerk of the district court of Morris county is of date November 10, 1921. Appellant’s bills of ex-_ ception seem to have been filed in the court" below on August 6, 1921. The statement of facts also appears to have been filed in the court below on August 6th. It being impossible of ascertainment from said caption as to whether said bills of exception and statement of facts were filed within the time 'allowed by law, because of the defective character of said caption as above mentioned, the motion 'Of the state to dismiss is granted.

The recognizance in the record is not in accord with article 903, Vernon’s C. C. P., but appears to be in form for such recognizance for appearance in the trial court. This is not a proper recognizance for appeal, and for this reason, also, it is ordered that appellant’s appeal be dismissed.

On Motion for Rehearing.

The defective caption and recognizance which caused the dismissal of this appeal at a former day of the term having been corrected, the case will now be considered by us upon its merits.

We find no error in any of the matters complained of by appellant save that shown in bill of exceptions No. 4. Therefrom if appears that, notwithstanding the personal presence and testimony of the father and mother of prosecutrix to her age at the time of the alleged rape, the state was permitted to introduce in evidence a Bible showing the age of such injured female, as there entered by her mother about the year 1908 when it appears prosecutrix was about three years old. The prosecution was for rape upon a female under tlie age of consent, and the issue of nonage was sharply contested. When there is an issue made by the evidence as to the age of the alleged injured female, this court seems to have uniformly held inadmissible books or record entries of any kind as to such age, when the evidence of the parents or the makers of the record is obtainable. The identical point was discussed in Rowan v. State, 57 Tex. Cr. R. 625, 124 S. W. 668, 136 Am. St. Rep. 1005, and the evidence of a family Bible showing the entry of the age of prosecutrix was held inadmissible, and also hurtful. See, also, Stone v. State, 45 Tex. Cr. R. 91, 73 S. W. 956; Haywood v. State, 61 Tex. Cr. R. 92, 134 S. W. 218. Following these authorities, the judgment of the trial court must be reversed, and the cause remanded for the error of the admission of the book showing the age of prose-cutrix; and it is so ordered. 
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