
    Will Douglas, alias General Douglas, v. The State.
    No. 3047.
    Decided April 8, 1914.
    1. —Rape—Child Witness—Evidence.
    Where, upon appeal from a conviction of rape, the record disclosed that when the State’s witnesses were questioned in regard to the transaction they possessed sufficient intelligence to correctly and intelligently relate the transactions about which they were interrogated, there was no error. Following Brown v. State, 2 Texas Grim. App., 115, and other cases. Davidson, Judge, dissenting.
    2. —Same—Evidence—Declarations of Prosecutrix—Harmless Error.
    Where, upon trial of rape, the defendant himself admitted that he committed same, and his only defense was that he was a person of weak intellect, the admission of testimony as to the declarations of the prosecutrix some time after the alleged offense was harmless error. Following Tinsley v. State, 52 Texas Grim. Rep., 91.
    3. —Same—Insanity—Charge of Court—Presumption—Burden of Proof.
    Only in those cases where prior to the commission of the offense, the person on trial has been legally adjudged insane, or it is admitted or proven conclusively that the accused had been insane, would the law presume that this condition existed at the time of the commission of the offense, and there was no error in refusing a requested charge which was contrary to this rule, and the burden of proof is upon the defendant. Davidson, Judge, dissenting.
    4. —Same—Insanity—Rule Stated.
    In this State when the State shows that the crime is committed by the defendant beyond a reasonable doubt and he seeks to avoid its consequences by proof that he was not mentally responsible for his act the burden of proof is on him.
    5. —Same—Sufficiency of the Evidence—Weak Intellect.
    Where, upon trial of rape, the defendant admitted the act of intercourse, but claimed that he was of weak intellect from his birth, yet the facts showed that he knew at the time that he was doing wrong, the conviction was sustained.
    6. —Same—Indeterminate Sentence Law—Reforming Judgment.
    Where, upon appeal from a conviction of rape, the record showed that the defendant was entitled to be sentenced under the indeterminate sentence law, the sentence and judgment is so reformed.
    Appeal from the District Court of McLennan. Tried below before the Hon. Bichard I. Munroe.
    Appeal from a conviction of rape; penalty, thirty-five years imprisonment in the penitentiary.
    The opinion states the case.
    
      Edgar Harold and Blair Siribling, for appellant.
    Onquestion of child witness: Mays v. State, 58 Texas Crim. Rep., 651.
    On question of insanity: Wooten v. State, 51 Texas Crim. Rep., 428; Morse v. State, 68 Texas Crim. Rep., 351, 152 S. W. Rep., 927; Witty v. State, 69 Texas Crim. Rep., 125, 153 S. W. Rep., 1146.
    
      O. E. Lane, Assistant Attorney General, for the State.
   HARPER, Judge.

Appellant was convicted of rape on an eight-year-old girl, and prosecutes this appeal.

Jimmie Hickey testified that appellant came to him and offered him a nickel to go and get Lucile House to come out there—they wanted her at the courthouse, and did go and get her for him. Lucile House testified that appellant told her her mother wanted her to come to the courthouse; that she got ready and went with appellant, and instead of him carrying her to the courthouse, he carried her out in the woods and raped her. She was examined by a doctor, and it was conclusively shown that she had been raped.

Appellant objected to Jimmie Hickey testifjdng, who was only nine years old, and Lucile House, who was only eight years old, on the ground that they were incompetent witnesses. Appellant submits a sound proposition of law, that children who after having been examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the nature and obligation of an oath, are incompetent as witnesses. But this record discloses that when these witnesses were questioned in regard to this transaction they do possess sufficient intelligence to correctly and intelligently relate the transactions about which they are interrogated. The little girl especially seems to possess more than average intelligence for negro girls of her age, while the boy details exactly what he did and his connection with the transaction. As regards the obligation of an oath: The boy said he knew the clerk swore him to tell the truth, and that they would put him in jail if he did not do so. The girl testified that she goes to school, knows her A B C’s and can read and write; that she knew she had sworn to tell the truth and she would he put in jail if she did not do so. Our law has wisely placed this matter within the discretion of the trial judge, and we would only he authorized to disturb his finding where an abuse of discretion has been shown. We do not think this record discloses any abuse in this respect, but the voir dire examination of these witnesses show a careful, painstaking investigation of their competency as witnesses, and it has often been held by this court there is no precise age within which a child is held incompetent to testify. At the age of fourteen a person is presumed to be competent. Hnder that age his competency is practically determined by an examination in respect to natural intelligence, etc., and unless it he made clearly to appear that in admitting the testimony of a child, the court below abused its legal discretion to the prejudice of the accused, this court will not reverse his ruling. Brown v. State, 2 Texas Crim. App., 115; Ake v. State, 6 Texas Crim. App., 398; Burk v. State, 8 Texas Crim. App., 336; Williams v. State, 12 Texas Crim. App., 127; Taylor v. State, 22 Texas Crim. App., 529; Hawkins v. State, 27 Texas Crim. App., 273; Parker v. State, 33 Texas Crim. Rep., 111; Oxsheer v. State, 38 Texas Crim. Rep., 499. In the cases above cited will he found the rule clearly announced, and in hardly any of them were the children possessed of more ability to correctly and intelligently relate the transaction inquired about than do these two children, and in some of them not near so much intelligence is disclosed.

In another bill it is shown that Lucile House, on her way from the place she was carried by appellant and raped, met her uncle, King Washington, he being the first person, she met, and he was permitted to detail what she told him. He said that when he met her he asked where she had been, and she said: “‘I have been in the country/ I asked her what she went out there for and she said, ‘That man carried me out there/ I suppose that was along something after four o’clock. I picked her up and asked her what man, and she said, ‘Mr. Douglas/ She said, ‘He carried me out in the woods.’ I says, ‘What did he do ?’ She says, ‘He laid me down/ ” The court says he admitted this testimony because this was the first person the little girl met after she had been raped by appellant. The record does not disclose the length of time elapsing from the time she left appellant until she met her uncle, and he says she was excited, but we hardly think the State makes a case which would render this testimony admissible as res gestae, and the fact that it was the first person she met would not render it admissible, unless it comes within the res gestae rule. So hold all of our decisions, beginning with Pefferling v. State, 40 Texas, 487, on down to the present time. But is it such error as should cause a reversal of the case? In the record before us there is no effort made to show that appellant did not in fact have carnal intercourse with this girl. The evidence and all the evidence shows that he did, the only defense made being that appellant was a person of weak intellect from his birth, and that he had not sufficient intelligence to know right from wrong. The record contains a confession made by appellant which reads:

“The State of Texas,

“County of McLennan.

“I, General Douglass, being under arrest and charged with the offense of rape and being warned by Jno. B. McNamara that I do not have to make any statement or confession at all in reference to said charge and accusation against me, and that any statement which I might make in reference to said charge against me may be used in evidence against me on my trial for the offense concerning which my statement and confession is herein made, do freely and voluntarily and without compulsion or persuasion make to the said Jno. B. McNamara the following statement and confession:

“Last Saturday, April 12, 1913, I was down to Mrs. House’s home. She lives down near Biver Street. Lucile House was there. She is a negro girl. I told her to come and go with me to' where I worked and I would buy her a dress. She went with me out North Fifth Street, and when we got near the end of North Fifth Street we went into some brush, and we lay down on the ground. I pushed her over, and when I did . she said, ‘Don’t do that/ As I pulled her over I pulled my tool out and got on her, and tried to get it in her and stayed on her about ten min-

utes. I came all right—I mean by this that I got my gun off. When I come the smear went all over her legs and clothes and on by old hat. I took Lucile away from home to get a little from her. I never intended to buy her a dress. I told her that to get her to go with me. “I come on back to town with Lucile and went to within a block of her house. I did not go on home with her because I knew I did wrong. I call Lucile about 8 years old.

“Witness my hand this 14th day April, 1913. •

“His

“General Douglas.

“Hark

“Witness:

“James Hays Quarles,

“Lee Jinkins.”

This confession, proven up as it was by three witnesses, was properly • admitted in evidence, and it together with all the testimony properly admitted on the issue of rape, renders the testimony of the witness King Washington harmless error. If there was any evidence tending to show that she had not in fact been raped, or if raped, that appellant was not the person guilty of the offense, we would not so hold, but when the legal testimony and all the testimony proves these facts beyond question, and his confession admitting the offense being in the record, and the only defense offered being a lack of sufficient intelligence to lie amenable to the law, the case should not be reversed bcause of the admission of this improper testimony. It added nothing to the strength of the case made by the State under'these circumstances, and it has always been the rulé' in this court that under such circumstances the case will not be reversed. Tinsley v. State, 52 Texas Crim. Rep., 91.

Appellant requested two special charges in which he asked the court to charge the jury if they believed that at any time prior to the date of the commission of the offense the defendant was insane, or an idiot, or an imbecile, the law would presume that this condition existed at the time of the commission of the offense, unless the State established beyond a reasonable doubt that at the time the offense was committed appellant was of sound mind. This is the law, as shown in the case of Witty v. State, 69 Texas Crim. Rep,, 125, 153 S. W. Rep., 1146, only in those cases where prior to the commission of the offense the person on trial has been legally adjudged insane or it is admitted or proven conclusively on the trial had prior thereto that he had been insane. In all other cases, while all testimony which would tend to show that he was insane or an idiot, or an imbecile, at the time of the commission of the offense, would be admissible, no matter how remote, yet under the decisions of this court the burden of proof is on the defendant to show his mental incapacity to commit crime at the time of its commission, and the court did not err in so instructing the jury in his main charge, and this issue was fairly presented in the main charge and in the charge ’ given at appellant’s instance, reading as follows: “Gentlemen of the jury: You are charged that the law does not require the defendant to establish his insanity beyond a reasonable, doubt, but the law requires that he establish it by a preponderance of the evidence and if you find that he has established his insanity by a preponderance of the evidence jura will acquit him.”

The defendant also requested the court to instruct the jury that while the law presumed that all men are sane, yet this presumption is subordinate to the presumption of innocence. While this is the law in some States, that when the question of insanity is raised by the testimony, the State must prove sanity beyond a reasonable doubt, yet this has never been the rule in this State, and this court has always adhered to the rule, that when the State shows that the crime was committed by the person on trial beyond a reasonable doubt, and he seeks to avoid its consequences by proof that he was not mentally responsible for his acts, the burden is on him to so show.

The only other ground we need discuss is the sufficiency of the testimony. That it shows that appellant raped the little girl is beyond all question, but the testimony introduced by appellant does tend to show that he is a person of weak intellect from his birth; yet the facts attendant upon this crime would lead one to almost conclusively conclude that he knew this crime was wrong. He met the mother up in town attending court; he goes down to the mother’s residence, and finding the little girl at a neighbor’s, he sends a boy to her to tell her that her mother has sent for her to come to the courthouse. He also tells this to the little girl to get her to go with him; takes her to the woods, where no prying eyes can see, and where no ears can hear her protests. He beguiles her with promises, and then commits the offense. His whole acts and conduct show sufficient intelligence to lead anyone to believe that as soon as he saw the mother and brother up town, he conceived the idea of seducing this girl away from her home; to think up a plausible story to induce her to leave her home with him; to take her to a secluded spot and there make fair promises, in order to accomplish his purpose. The whole theory of the defense is based on weak intellect from birth,—and yet his relatives and parents have permitted him to go at will, and this is not the first crime he has committed. The State’s witnesses and some of the defendant’s witnesses testify that he does know right from wrong, and has sufficient mental capacity to commit crime, and we will not disturb the verdict.

However, he was entitled to be sentenced under the indeterminate sentence law, and the sentence is reformed to read that he be confined in the penitentiary for a term of not less than five years nor more than the number of years of punishment affixed by the jury, and the judgment is so reformed affd corrected.

The judgment is affirmed.

Affirmed.

DAVIDSON, Judge.

I think the special charge requested ought to have been given under authority of Wooten’s ease, 51 Texas Crim. Rep., 428, and cases cited by appellant. The issue of settled or permanent insanity was an issue, and it ought to have been charged.

2. Error is conceded by majority in regard to statements by prosecutrix, but they hold it not of sufficient importance to reverse because the evidence is sufficient to show guilt. This is not legally the criterion where important illegal evidence is admitted. Defendant received 35 years in the penitentiary. This is not the minimum punishment.

3. The criterion of competency of children as witnesses is liability for perjury. Under this rule, under present statute, I more than doubt the admissibility of the evidence of the two children who testified. Art. 34, P. C.  