
    MORA v. STATE.
    (No. 3092.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 13, 1914.)
    1. Rape (§ 52) — Evidence—Age of PROSECU-TRIX.
    The evidence amply showed that prosecu-trix was under 15 years of age, where, though the year of birth was not named, it was fixed by an event the date of which was shown.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.]
    2. Rape (§ 52) — Sufficiency of Evidence.
    Where penetration was testified to by the girl and admitted by appellant in his confession introduced in evidence, it was sufficiently proven.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.]
    3. Ceiminal Law (§ 922) — Objection to Charge — 1Time.
    Where no objection was taken to the . charge during the- trial and before it was read to the jury, it is too late to complain of it for the first time in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    On Motion for Rehearing.
    4. Criminal Law (§ 1086) — Record — Ruling on Motion to Elect:
    - The record on appeal should contain the court’s judgment on a motion to require the, state to elect' which offense it wduld rely upon in asking for a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. .Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    5. Criminal Law (§ 678) — Trial—Election Between Acts.
    The state, at the conclusion of the testimony in a prosecution for rape on a girl under 15 years of age, should be required, on motion of defendant, to elect upon which specific act of intercourse it would rely for a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Ildelfonso Mora was convicted of rape on a girl under 15 years of age, and he appeals.
    Reversed and remanded on rehearing.
    N. A. Rector, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same .topic and section NUMBER in Dec. Dig. & Am. Dig. -Key-No. Series- & Rep’r Indexed.
    
   HARPER, J.

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

The first ground in the motion for new trial contends that the evidence is insufficient, because no witness named the year in which prosecutrix was born. The evidence amply shows that she was under 15 years of age, for, while the year of birth was not named, yet it was fixed by an event, and the date of this shown; and it would be immaterial, under such circumstances, whether or not she gave her consent to the act of intercourse.

Penetration was testified to by the girl, and admitted by appellant in his confession introduced in evidence; so this fact was sufficiently proven.

As to there being no sworn testimony that Raquel Ojeda was not married to defendant, this was admitted in open court on the trial of this case. ' The evidence amply supports the verdict, and, under the testimony in this case, there was no error in admitting the confession in evidence.

This case was tried in December of last year, and no objections were made to the charge as given during the trial of the case and before it was read to the jury, and it is too late now to complain of'the charge for the first time in the motion for new trial.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this cause, in which he calls our attention to the motion made to require the state to elect upon which act of intercourse it would rely in asking for a conviction. In some way we overlooked this motion. There is no judgment in the record upon it, and it is not recited in the index to the record. The bill in the record terms it a special charge, and ■ it is not included in the bill, but attached ; thereto as an exhibit, after another special charge. •

The record should contain the court’s-judgment thereon, but it does not do so, and the only way we can determine that it was called to the attention of the trial judge, is. that at the bottom of it it is marked, “Refused.”

In prosecutions for rape on a girl under 15 years of age, where the parties stand in relationship to each that these parties did, all arts are admissible in evidence. Battles v. State, 63 Tex. Cr. R. 157, 140 S. W. 788, but, as we said in that case:

“The state, at the conclusion of the testimony, should he required to elect upon which specific act it would rely for a conviction, and the court in his charge properly limit the application of the testimony as to other acts of intercourse, acts of intimacy, etc. This is the rule as we understand it in other criminal offenses, and we see no reason why it should be different in the case of rape of a child.”

Appellant having timely filed his motion to require the state to elect, the court should have sustained that motion, and erred in not doing so. Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 683; Stone v. State, 45 Tex. Cr. R. 92, 73 S. W. 956; Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791. And the error in not doing so is emphasized in the charge of the court.. All acts were shown to have taken place during the previous year, and, after overruling the motion and refusing to require the state to elect, the court instructed the jury to find appellant guilty, if they found he was guilty of an act of intercourse with the girl “at any time within one year before the 14th of November, 1913,” thus authorizing a conviction on any one of the four acts testified to by the witness.

Motion for rehearing is granted, and the judgment of affirmance is now set aside, and the judgment of conviction is reversed, and the cause remanded.  