
    HUELL v. STATE.
    (No. 6594.)
    (Court of Criminal Appeals of Texas.
    Jan. 18, 1922.)
    1. Criminal law <&wkey;l 158(2) — Trial court’s determination of defendant’s age conclusive on appeal.
    Where the evidence was conflicting as to defendant’s age, the trial court’s solution is conclusive on appeal.
    2. Criminal law <&wkey;446 — School census reports not conclusive as tó defendant’s age.
    School census reports are not conclusive as to defendant’s age.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Rosa Huell was convicted of burglary, and she appeals.
    Affirmed.
    P. R. Rowe, of Livingston, for appellant.
    R. G. Storey, Asst Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for burglary; punishment fixed at confinement in the penitentiary for a period of 2 years.

The appellant claimed that she was a juvenile under 18 years of age. She testified that March 17, 1905, was the date of her birth; that she married on December 24, 1917; that her mother died when appellant was 6 years of age; that at the time of her marriage appellant was 12 or 13 years old. Her life had been spent in the village of On-alaska. She quit school while in the sixth grade, about one year before her marriage. Appellant is a negress. Her father was unable to give any dates, but said that, to the best of his knowledge, she was in her seventeenth year; that her mother had been dead ' for about 10 years; and that at the time of her death, appellant was going on her sixth year, so her mother said. The witness could neither read nor write. He had listed her age with the school census enumerator from the best information that he possessed. The school census for 1912 gave her age as 8 years, and the date of her birth as 1904; the school census made in May, 1911, gave the date of her birth in March, 1904, and age at 7 years; and the school census for 1909, while listing the other children of the family omitted her name.

The sheriff of the county had lived in the village 8 or 9 years, and had known her since 1906, at which time she was a child, apparently 4 or 5 years of age.

Gore, another witness, testified that he had known appellant for 15 or 16 years; that when he first saw her, she was large enough to accompany her mother, who did the washing for the witness; that at that time appellant appeared to bo about 3 or 4 years of age.

We are impressed with the view that the evidence presents an issue of fact touching the age of appellant, and that the solution of the issue by the trial court upon the conflicting testimony is conclusive on appeal. The census reports'are not conclusive. See Mireles v. State, 83 Tex. Cr. R. 608, 204 S. W. 861, and cases cited therein. Whether they were in the instant case original evidence may be questionable. Wharton’s Crim. Evidence, § 310K, vol. 2, p. 604. They seem to have been received as corroborative of the declarations of the father of appellant. As we understand the case, their accuracy depended upon his knowledge of the age of his daughter. Upon this he was confessedly uncertain at the time of the trial, and possessed, at the time he gave the information, upon which the census reports were based, no more definite knowledge. Some of these reports touching upon the date of the birth of appellant are in conflict with her testimony upon the same subject, and, upon the whole, the matter turns upon a question of fact which it was the province of the trial judge to determine.

The judgment is affirmed. 
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