
    TATE v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1912.)
    1. Criminal Law (§ 421) — Evidence—Prosecutrix’s Age — Reputation.
    Prosecutrix’s age could not be proved by general reputation; her parents and relatives being alive and testifying differently as to her age.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 976-983; Dec. Dig. § 421.]
    2. Rape (§ 59)— Instructions — Issues.
    Where the defense in a prosecution for raping a girl under 15 years of age was that prosecutrix was over 15 years of age, and there was evidence that she was a leap-year child, and was born on February 29, 1896, and had had only two regular birthdays, in 1904, and 1908, not having a birthday in 1900, because that year was not divisible by 400, it was error not to call' the jury’s attention to such facts, and instruct that, if prosecutrix was born on February 29, 1896, accused could not be convicted under the indictment alleging that ishe was under 15 years of age.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    C. C. Tate was convicted of rape, and" he appeals.
    Reversed and remanded.
    J. M. Wagstaff, Cunningham & Sewell, and C. L. Hailey, all of Abilene, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   DAVIDSON, P. J.

Appellant was convicted of rape; the allegation being that the girl was under 15 years of age. This was a very seriously contested issue upon the trial; the father; mother, sister, and brother of the ■prosecutrix being divided on the age, as were some of the other witnesses as to whether she was born on the 29th of February, 1896, or on the 28th of February, 1898. In regard to this particular question, there was quite a lot of alleged newly discovered evidence attached to the motion for new trial. In view of the disposition of the case, we deem it unnecessary to discuss this, as it will not be newly discovered evidence upon another trial.

The state was permitted, over the objections of appellant, to introduce through several witnesses, mainly the constabulary, that the general reputation at Abilene and in that community was that the girl was about 13 years of age, and to the effect that she was under 15 years of age. Numerous grounds of objection were urged to the admission of this testimony. This testimony was not admissible. The age of the prosecutrix could not be proved by general reputation. Sims v. State, 70 S. W. 90; 1 Ency. of Ev. 735. The admission of this testimony was clearly error.

The court’s charge is criticised, in that it failed to pointedly instruct the jury in regard to appellant’s defensive matter, to wit, that the girl was over 15 years of age. There is considerable evidence to the effect that she was born on the 29th day of February, 1896, and was what the witnesses called a leap-year child, and prosecutrix herself testified she always understood she was a leap-year child, and that she had only two regular birthdays, one in 1904 and the other in 1908; that inasmuch as the birthday which would ordinarily occur at the end of the four years could not occur in the year 1900, because not divisible by 400, therefore she did not have a birthday that year.

The contention of appellant is that the charge as given did not call this matter to the attention of the jury, and only submitted in a general way that, if the jury should find beyond a reasonable doubt, etc., that appellant had carnal knowledge of the prosecu-trix, and she was not his wife, and that she was under the age of 15 years, etc., he would be guilty. We are of opinion that upon another trial the attention of the jury in the court’s charge should be pertinently and affirmatively called to the testimony which presents that issue; that is, that she was born in 1896, and that, if the jury should find that she was born that year, appellant could not be guilty of rape under this indictment.

The judgment is reversed, and the cause is remanded.  