
    MARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    Rehearing Denied - April 15, 1914.)
    1. Criminal Law (§ 1160) — 'Verdict—Con-clitsiveness.
    A conviction for rape, supported by the testimony of prosecutrix and corroborating circumstances, and approved by the trial .judge, will not be disturbed on appeal merely because of contradictory evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3084; Dec. Dig. § 1160.]
    2. Rape (§ 17)—-Under Age op Consent-Justification.
    One having intercourse with a girl under 15 years of age cannot justify his act on the ground that he believed she was over 15 at the time, and his mistake arose from want of proper care on his part.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. § 20; Dec. Dig. § 17.]
    3. Rape (§ 59)—Under Age of Consent-Justification.
    Where, on a trial for statutory rape, the only issue was whether prosecutrix was under or over 15 years of age, and the testimony was conflicting, and there was no evidence that, if she was under 15, accused had used any care to ascertain that fact, an instruction that if accused assaulted prosecutrix, but the jury have a reasonable doubt as to whether she was at the time under the age of 15 years, accused should be acquitted properly submitted the issue, since there was no evidence to bring accused within Pen. Code 1911, art. 47, prescribing when a mistake of fact is an excuse.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    Appeal from District Court, Travis County ; George Calhoun, Judge.
    Neal Martin was convicted of crime, and he appeals.
    Affirmed.
    E. T. Moore and Charles Rogan, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of statutory rape, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant shows that, prior to being charged with this offense, he bore a good reputation as a peaceable, law-abiding citizen. He also introduced some testimony tending to show that he was impotent, and it was therefore impossible for him to have' committed this offense. However, the girl swears positively to several acts of intercourse, and the jury evidently believed her and the testimony offered in behalf of the state. Appellant introduced many circumstances tending to render the testimony of the girl incredible, yet, .in spite of all this testimony, the jury finds she was telling the truth; that appellant did have intercourse with her. The district judge who tried this case refused to disturb their verdict, and shall we, who did not hear the testimony as delivered, see the witnesses, nor their manner of testifying, hold that the jury and the trial court were in error in giving credence to her testimony? If it was unreasonable, or if it did not make a ■case, we would not permit the verdict to stand, but the facts as detailed by her make a case, and other circumstances corroborate her, and we do not feel authorized to disturb the judgment. While quite a severe arraignment of district judges in general was made in -the argument, yet they, like ourselves, are sworn officers of the law, and it is their, as well as our, duty to see that no unjust judgment is permitted against any citizen of this state. We have implicit faith and confidence in the trial judges, and that they will do their duty, and we always give great weight to their action in a matter of this kind, and feel that in doing so we are but following the plain intent of the law. They feel their responsibilities, as we do ours, and will protect the innocent as.well as punish the guilty. The contention that the evidence is insufficient, and for this reason the judgment should be reversed, cannot be sustained.

The only other contention that need be discussed is that the court erred in failing to charge the jury as follows, at the request of appellant: “That, if Richetta Coleman was under 15 years of age at the time of the act, such act was unlawful, whether done with or without her consent, unless you believe from the testimony that the defendant at the time was laboring under a mistake as to a particular which would excuse him in law had such fact existed, to wit, as to the age of the said Richetta Coleman. That is, as to said Richetta Coleman being over the age of 15 years at the time of the act. According to the law, if a person, laboring under a mistake as to a particular fact, shall do an act which would otherwise be criminal, he is guilty of no offense, if the fact about which he conjectured and was mistaken would have excused him had such fact existed as believed. Now, if you believe from the evidence in this ease that the defendant had carnal intercourse with Richetta Coleman, and that she was under 15 years of age at the time, but that she was willing and consented to such act, and if you further believe that the defendant honestly conjectured and believed that she was over 15 years of age at the time, you cannot convict him, but must acquit him, provided you further believe that such mistake did not arise from want of proper care on his part.” This question has been decided adversely to appellant’s contention. Robertson v. State, 51 Tex. Cr. R. 495, 102 S. W. 1130.

The court instructed the jury: “Unless the jury believe from the evidence beyond a reasonable doubt that the defendant, Neal Martin, had actual carnal knowledge of the said Richetta Coleman, as hereinbefore explained and defined, they will acquit the defendant. If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, Neal Martin, had carnal knowledge of the said Richetta Coleman, but have a reasonable doubt as to whether or not at the time he had carnal knowledge (if he did have such carnal knowledge) she was under the age of 15 years, then they will acquit the defendant.” The evidence shows that appellant had known the prosecuting witness from her birth up to the present time. He testified she was over 15 years of age, as did several other witnesses. This was an issue that was properly submitted to the jury, and they find against such contention. There is no evidence that would bring appellant within the provisions of article 47 of the Penal Code, for, by the evidence, the only issue raised was whether or not she was under or over 15 years of age, and there is no testimony that, if she was under 15 years of age, appellant had used any diligence or care to ascertain that fact.

The judgment is affirmed.  