
    GREENE v. STATE.
    (No. 9216.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    1. Criminal law &wkey;>444 — Admission of evidence of entry in Bible to show age of prosecutrix held error.
    Admission of evidence of entry in Bible to show age of prosecutrix held error, in absence of showing of correctness of entry, and that jt was made contemporaneously with birth of prosecutrix.
    2. Criminal law &wkey;4!9, 420(10) — Admission of testimony of prosecutrix as to age she gave school teacher, and that latter put it down in book, held error.
    Admission of testimony of prosecutrix as to age- she gave school teacher, and that such • teacher put age down in book, held error.
    3. Criminal law <&wkey;982— Refusal to permit accused to file plea for suspended sentence held not abuse of discretion.
    Trial -court’s refusal to permit accused to file plea for suspended sentence, based on necessary consequent delay of case for 24 hours, to procure necessary witness on issue which such plea would raise, held not abuse of discretion.
    4. Rape <&wkey;59(9) — Refusal to' give requested charge stating what matters could be considered in mitigation held not error.
    In rape prosecution, where issue was whether prosecutrix was under 15, as claimed by the state, or between 15 and 18 and of previous unchaste character, as claimed by accused, refusal to give requested charge that jury could consider only, in mitigation of offense and- penalty therefor, the fact, if found by jury, that prosecutrix was finder 15, and that her refutation for virtue and chastity was bad, held not error.
    
      5. Rap& <&wkey; 17—Requested charge bearing on issue of prior unchaste character and age of prosecutrix held properly refused as being incorrect.
    In rape prosecution, where issue was whether prosecutrix was under 15, as claimed by state, or between 15 and 18 and of previous unchaste character, as 'claimed by accused, requested charge that an acquittal was proper if accused had carnal knowledge of prosecutrix and knew of her prior unchaste character, and person of ordinary prudence would, from her appearance, have taken her to be over age of 15, held properly refused as being incorrect statement of the law.
    Commissioner’s Decision.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Eugene Greene was convicted of rape, and he appeals.
    Reversed and remanded.
    C. R. Newland, of Dinden, for appellant.
    Tom Garrard, 'State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State!
   BAKER, J.

The appellant was indicted, tried, and convicted in the district court of Cass county for the offense of rape upon one Janie Williams, under the alleged age of 18 years, and his punishment assessed at 5 years in the penitentiary.

The statement of facts discloses that the appellant and the prosecutrix were both negroes, and shows the state’s theory to be that the prosecutrix was under the age of 15, while the evidence produced by the appéllant discloses the age of the prosecu-trix to be between 15 and 18 years of age. The state’s evidence tended to show that the alleged offense occurred with force, while the defendant’s evidence was a denial of any intercourse with the prosecutrix,, and that she was over the age of 15 and of unchaste character.

By bill of exception No. 2, complaint is made to the action of the court in permitting the state to introduce in evidence the Bible for the purpose of showing the age of prosecutrix, and entries therein, because the prosecutrix testified to having seen the entry made since her birth, bujt did not know who entered same, and because same was hearsay, and because said witness was not shown to have been the custodian of the Bible, and did not make the entries, and because there is no showing as to whether the entry was correct, or under what circumstances the.entries 'were made. 'We believe that the court erred in permitting this testimony, and that same was not admissible unless the state had shown that said entries were correctly made and contemporaneous with the time of the birth of prosecutrix, or that the parents of the prosecutrix were not accessible to the court. Upon this point, we are cited by appellant’s counsel to the following cases: Rowan v. State, 57 Tex. Cr. R. 625, 124 S. W. 668, 136 Am. St. Rep. 1005; Bibliben v. State, 68 Tex. Cr. R. 530, 151 S. W. 1044; Doddy v. State, 91 Tex. Cr. R. 634, 240 S. W. 555; Stone v. State, 45 Tex. Cr. R. 91, 73 S. W. 956; Smith v. Geer, 10 Tex. Civ. App. 252, 30 S. W. 1108.

We believe'the authorities supra lay down the doctrine in support of the contentions made by the appellant in this case.

Complaint is also made to the action of the court in permitting the state to prove by the prosecutrix that she gave her age in at school, and that the teacher put it down in a book as 12 or 13 years. We are of the opinion that the court was in error in permitting this testimony as shown by the authorities, supra, and also as shown by the following authorities: Simpson v. State, 46 Tex. Cr. R. 551, 81 S. W. 321; Heitman v. State, 78 Tex. Cr. R. 349, 180 S. W. 701.

Complaint is made to the action of the court in refusing to permit appellant to file a plea for suspended sentence after the evidence had been closed. The court’s explanation of the bill shows that he would have had to delay the case for 24 hours to have complied with this request, in order to send for a witness necessary on this issue. Said matter being left to the discretion of- the court, we are unable to say that the refusal of the court to grant this request was an abuse of his discretion.

The appellant complains of the refusal of the court to give his special charge No. 1 to the jury, to the effect that if they believed that prosecutrix was under the age of 15 years when the offense was committed, and that her reputation for virtue and chastity was bad, that they could only consider same in mitigation of the offense and penalty therefor. There was no error in refusing their charge.

Complaint is, made to the action of the court in refusing to give to the jury appellant’s special charge No. 2, to the effect that if the defendant had carnal knowledge of the witness, and that if the defendant knew of her prior unchaste character, and if a person of ordinary prudence would from her appearance have taken her to be over the age of 15 years, to acquit him. We think there is no error in refusing this charge, because we are of the opinion that same is not a proper enunciation of the law.

There is also complaint urged to the insufficiency of the testimony in this case, which appears to us was not very cogent, but, owing to having to reverse tfús case for the errors above mentioned, we decline to at this time pass on that issue.

For the reasons above stated, we are of the opinion that the judgment of the trial court should be reversed and remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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