
    COWDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1912.)
    1. Criminal Law (§421*) — Evidence—Hearsay — Age.
    While, where prosecutrix’s mother and father are dead or beyond the court’s jurisdiction, and her age is in issue, hearsay evidence as to her age was admissible, if based on statements of her near relatives or persons in a position to know thereof, it was error to admit evidence that prosecutrix’s general reputation was that she was only 13 years of age, where her parents had testified in the case to her age, though they testified differently.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 976-983; Dec. Dig. § 421.*]
    2. Rape (§ 59*) — Instructions—Defenses.
    In a prosecution for rape of a girl under 15 years of age, in which accused claimed that prosecutrix was over that age, and the evidence made that question an issue, such defense should be affirmatively submitted by instructing that, unless the jury believed beyond a reasonable doubt that prosecutrix was under 15 years of age at the time of the alleged offense, they should acquit.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.*]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Jeff Cowden was convicted of rape, and he appeals.
    Reversed' and remanded.
    J. F. Cunningham, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted for and convicted of the offense of rape on a girl under 15 years of age, and his punishment assessed at 5 years’ confinement in the penitentiary.

The defendant is shown to be a man 50 years of age, and a man of good reputation in the community where he lives — a peaceable, law-abiding citizen. He testifies most positively that he had never had intercourse with the prosecuting witness. She, on the other hand, is as emphatic that defendant had had intercourse with her on two or three different occasions. The record contains an admission by the state that the general reputation of the prosecuting witness for chastity is bad. In addition to the above issue being sharply drawn, the issue as to the age of the prosecuting witness was also a sharply contested issue. The state introduced testimony showing that the prosecuting witness was only 13 years of age, while the defendant introduced testimony that she was more than 15 years of age, was born on the-29th day of February, 1896 —a leap-year child as it is termed. The mother of the prosecuting witness and one brother testify to facts that would show her to be more than 15 years of age at the time of the alleged offense, while her father- and other witnesses would make her only 13 years old.

With the issue thus made, the court permitted the sheriff and deputy sheriff, over the protest and objection of defendant, to testify that “they were acquainted with the general reputation of the prosecuting witness in the community where she lives as to her age, and her general reputation was that she was only 13 years of age.” A proper bill of exceptions was reserved to the introduction of this testimony, and in his approval the court qualifies the bill in a way that emphasizes the error in admitting it; for by the qualification it is shown that both the father and mother of the girl were living and testified as to her age. In a proper case, where the mother and father are dead, or beyond the jurisdiction of the court, and age is an issue, hearsay testimony is admissible, if based on statements of the father and mother, or other near relatives, or persons who were in position to know. But in no instance, where the mother and father and other relatives testify positively as to age, even though they testify differently, is the “general reputation as to age” admissible; and as this improper testimony was admitted on a vital issue in the case, it will necessitate a reversal of the case, and, as the ease will be reversed on this ground, it is not necessary to discuss the alleged newly discovered testimony. It will not be newly discovered on another trial.

Neither do we deem it necessary to discuss the other grounds in the motion for new trial, further than to say, if the testimony on another trial is in substance the same as on this trial, the court should submit appellant’s defense affirmatively; that is, unless they find beyond a reasonable doubt that prosecuting witness was under 15 years of age at the date of the alleged offense, appellant should be acquitted, for she, by her testimony, shows that the sexual intercourse, if had, was with her consent.

The judgment is reversed, and the cause is remanded.  