
    LOPEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Abduction (§ 1) — Female—“Prostitution.”
    “Prostitution,” as used in Pen. Code 1911, art 1060, prohibiting the taking of a girl under 14 from her parents for the purpose of prostituting her, does not mean that the purpose shall be indiscriminately selling her person to others; the offense being committed if the defendant takes a girl under 14 from her parents to have carnal intercourse with her individually.
    [Ed. Note. — For other cases, see Abduction, Cent. Dig. §§ 1-10; Dec. Dig. § 1.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5740, 5741.]
    2. Abduction (§ 1) — Purpose oe Prostitution — Elements op Oppense.
    The offense denounced by Pen. Code 1911, art. 1060, prohibiting the taking of a girl under 14 from her parents for the purpose of prostituting her, may be committed though accused merely took her from her parents for that purpose without ever having intercourse with her.
    [Ed. Note. — For other cases, see Abduction, Cent. Dig. §§ 1-10; Dec. Dig. § 1.]
    3. Abduction (§ 12) — Purpose op Prostitution — Age—Evidence.
    In a prosecution for abducting a girl under 14 for the purpose -of prostituting her, evidence held insufficient to warrant a finding that she was in fact under 14 at the time of the abduction.
    [Ed. Note. — For other cases, see Abduction, Cent. Dig. § 22; Dec. Dig. § 12.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Raphael Lopez was convicted of abduction of a girl under 14 for 'the purpose of prostituting her, and he appeals.
    Reversed and remanded.
    S. J. Dotson, of Austin, and H. P. Shead, of Richmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otber cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPEORi, J.

Defendant was charged with the offense of abduction under article 1060 of the Penal Code in that he did take a girl under 14 years of age from her parents for the purpose of prostituting her.

Defendant earnestly insists that the word “prostitution” used in this article of the Code should be given its broad signification; that is, for the purpose of indiscriminately selling her person to others. This we do not think the intent of the Legislature, but it was intended to make it an offense for a person to take a girl away from her parents for the purpose of having carnal intercourse with her individually; this would be a “prostitution” of the girl.

It is also insisted that if he had intercourse with her this would constitute rape. This may be true, but the indictment in this case does not charge that appellant had intercourse with the girl, but only that he took her away from her parents “with the intent and for the purpose to force her into prostitution,” and the offense of abduction can be committed even though an act of intercourse never took place. The state can charge but once, and if it elects to charge one with the lesser grade of offense, when he could be indicted for either of two offenses, he cannot be heard to complain.

We have carefully read and considered each ground assigned and none of them present error, unless it be that the evidence shows that the girl was not only not under 14 years, but demonstrates affirmatively that she was over that age. Her father swears that she was born April 6, 1899, and if this is true she would be under that age. But on cross-examination he states that at the time of her birth he was living at Millett, Tex.; that he moved from there to Martindale, where he lived for three years, then at Luling three years; that he lived in and around San Antonio one year, and then another year at Martindale, and then went to Louisiana, where he remained five years, and then another year at Martindale, and then to Austin, where he had been four years at the time of the commission of this offense. This would make her 18 years of age. Her mother testified the girl was born in the year “29,” and then says since the girl’s birth they have lived one year at Millett, then at Martindale three or four years, then at Ruling two years, then six months at San Antonio, and then at San Marcos and Mart-indale four or five years, and then in Louisiana one year, and four years in Austin. This would make the girl at least 17 years old at the time the offense was committed. Under the allegations in the indictment and the charge of the court, the girl must have been under 14 years of age or he would not be guilty of the offense with which he was charged.

There is no doubt defendant’s conduct was very reprehensible, but this does not render him guilty of the offense charged against him, and in this case he can only be tried for that offense. To our mind the evidence conclusively shows that the girl was more than 14 years of age at the time she-was carried away by appellant, and by the testimony we must be governed.

It was improper to permit an officer to testify that the girl had the appearance of being under 14 years of age. This officer did not know anything about the date of her birth; he had no intimate association with her and is not shown to have ever seen her before the date of the alleged offense.

'Because the testimony as adduced on this trial would not authorize a finding that the girl was under 14 years of age, the judgment is reversed and cause remanded.  