
    HOPKINS v. STATE.
    (No. 3787.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.)
    1. Witnesses <&wkey;406 — Impeachment—Competence oe Impeaching Evidence.
    On a trial for an offense against a girl whose age was sharply contested, where the mot her testified concerning her age and that a younger daughter was born in 1905, the testimony of a witness that he taught school in the neighborhood in which the mother lived in 1907, and that all of the children went to school to him and were within the scholastic age, thus making the youngest girl at least seven years old, should have been admitted to impeach the .mother’s testimony.
    [Ed. Note.- — For other eases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. &wkey;406.j
    
      2. Witnesses <&wkey;414 — Corroboration of Impeached Witness — Competency oe Corroboration.
    It was error to permit the state to introduce in support of the mother’s testimony a census blank signed by her in which the ages of the girls were stated, where it was signed after the offense was committed, the indictment returned, and after the mother had testified before the grand jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. <&wkey;414.]
    3. Witnesses <&wkey;392 — Impeachment—Competency op Impeaching Evidence.
    A census report signed by the mother before the offense was committed and before there was any motive to swear falsely, in which the birth of the girl was stated to have occurred in a different year from that testified to on the trial, should have been admitted to impeach her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. 392.]
    4. Criminad' Law i&wkey;1134 — Appear—Record —Matters Presented por Review.
    Where the court qualified a bill of exceptions complaining of the exclusion of a census blank offered for the purpose of impeaching a witness, by stating that it would have been admitted if it had been properly proven up and that appellant’s counsel contended that it had been sufficiently proven to authorize its introduction, thus showing that the court and counsel placed a "different construction on the testimony, the appellate court could look to the record to see whether the testimony sufficiently proved such report to make it admissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]
    5. Witnesses &wkey;>392 — Evidence—Sufficiency of Preliminary Proof.
    Proof that a census blank, offered to impeach a witness who testified concerning the ages of her children, was signed by her, authorized its introduction in evidence, though the answers to the questions therein were written by the census taker.
    [Ed. Note. — For other cases, see Witnesses, OentDig. §§ 1249-1251, 1257; Dec.Dig. &wkey;392J
    Prendergast, P. J., dissenting.
    Appeal from District Court, Upshur County; W. R. Heath, Judge.
    Pierce Hopkins was convicted of an offense, and he appeals.
    Reversed and remanded.
    Mell & Stephens, of Gilmer, and A. U. Puckett and A. S. Baskett, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape, and his punishment assessed at 5 years' confinement in the state penitentiary. We will not discuss the testimony, nor all the bills of exception as presented by the record as, in our opinion, the case must be reversed and remanded for a new trial.

The age of the girl was a most sharply contested issue. She and her mother testified to the act of intercourse, and that she was under 15 years old. Appellant denied the act of intercourse, and contended that the girl was more than 15 years of age, and introduced two witnesses who so testified, and if the jury found that in fact he did have the act of intercourse, he was guilty of no offense, as all the testimony shows that if an act of intercourse occurred it was by mutual consent. Her age was a most sharply contested issue on the trial. The girl and her mother swear that Cyrinia was bom June 28, 1901. This would make her only 13 years of age at the time of the alleged rape. The mother, while testifying, said that her daughters, Mirt and Sapolio, were younger than Oyrinia; that Mirt was born November 13, 1903, and Sapolio was born February 24, 1905. If she stated the ages of. these girls correctly, Sapolio would only have been 9 years old in 1914, 4 years younger than Oyrinia. After she had so testified appellant introduced J. W. Sharp as a witness, and he testified he taught school in the neighborhood in which Haza Wallace, the mother, lived in 1907; that Oyrinia, Mirt, and Sapo-lio all went to school to him in 1907. As tending to affect her credit as a witness on the issue of age of the girl, bill of exceptions No. 4 shows that if Sharp had been permitted to do so he would have testified that all three of the girls went to school to him in 1907, and they were all within the scholastic age — making the youngest girl at least 7 years old in 1907, and the prosecuting witness in this case over 17 years of age in 1914. Haza Wallace had testified Sapolio was born in February, 1905, and if so she would only have been 2% years old in the fall of 1907. This witness would have sworn as shown by the bill, “all three of the girls were within the scholastic age,” and would have made Sapolio at least 7 years of age, instead of 2% years of age in 1907, Mirt at least 8y2 years of age, instead of 4 years of age, and Oyrinia at least 10 years of age instead of 6 years of age. Had this witness been permitted to testify that Mirt and Sap-olio had gone to school to him in 1907 and were within scholastic age, the evidence would have had a strong tendency to prove that the mother was incorrectly stating Cyr-inia’s age on this trial, and Oyrinia was in fact over 15 years of age at the time of the alleged act of intercourse. This testimony was admissible, and the court erred in excluding it.

Again it is shown that when Haza Wallace was being attacked as not correctly stating the age of these girls, the state was permitted to introduce the census of 1915 in support of her testimony. This was made by her after she contended the alleged offense had been committed, after she had gone before the grand jury, and after this prosecution had begun. It has always been the rule in this court that a witness cannot be supported or sustained by similar statements to that testified on the trial made after the motive existed, which would likely prompt him to testify falsely. This 1915 statement was made in May, 5 months after I-laza Wallace had testified before the grand jury in January, when the bill was returned, and the census blank signed by her after the bill of indictment had been returned, as to the age of the girl, would not be admissible to support her testimony on the trial, and should not be admitted on another trial. Sanders v. State, 31 Tex. Cr. R. 529, 21 S. W. 258; Conway v. State, 33 Tex. Cr. R. 330, 20 S. W. 401; Anderson v. State, 50 Tex. Cr. R. 130, 95 S. W. 1037.

We also think the court erred in not permitting the defendant to introduce the census report made in May, 1914, before the motive to swear falsely arose. This report would have tended materially to weaken the testimony of Haza Wallace on this trial, as in that census the birth of the girl is stated to have occurred .in a different year to that she testified to on the trial. In the qualification of the bill the court says he would have admitted it, if it had been properly proven up, and so stated to appellant’s counsel; that appellant contended it had been proven up sufficiently to authorize its introduction as tending to impeach the witness. We think appellant’s counsel correct in such contention. We might not be authorized to iook to the evidence, if the court in his qualification has not shown that he and appellant’s counsel placed a different construction on the testimony adduced, but as he shows this to be a fact in his qualification, then we must look to the record to see which one placed the correct construction on the testimony. Haza AVallace, in testifying about the 1914 census, said:

“I did not write that for the year 1914. I think that is Sadie Eubanks’ handwriting. Sadie Eubanks took it (the census) last year. I did not do the writing there of the age of Cyrinia AVallace. I signed it, but did not write it.”

Signing it, made it her act. It is known that the census taker always fills the blanks after asking the questions, and then gives- the blank filled to the person whose census is being taken for signature. As Haza Wallace admitted she signed the 1914 census, it was sufficiently proven up to authorize its introduction, as tending to impeach her testimony on the trial. While as hereinbefore stated, statements made after the motive to swear falsely has arisen, are not admissible in support of her testimony, yet it is equally well settled that statements made by her prior to the time the motive to swear falsely has arisen are admissible to impeach her. Hunter v. State, 8 Tex. App. 76; Deneaner v. State, 58 Tex. Cr. R. 624, 127 S. W. 201; Bostick v. State, 11 Tex. App. 126; Sanders v. State, 54 Tex. Cr. R. 111, 112 S. W. 68, 22 L. R. A. (N. S.) 243; Adams v. State, 52 Tex. Cr. R. 13, 105 S. W. 197; Boatright v. State, 42 Tex. Cr. R. 443, 60 S. W. 760.

We also think the newly discovered testimony is of the character and kind which presents error in the ruling of the court. As before s-aid, the age of the girl became and was a most material issue in the case. The testimony of the prosecutrix, her two sisters, and her mother would make her under 15 years of age. The testimony of Quincy Eubanks, John Hopkins, and Ida Hopkins would all make the prosecuting witness 17 years of age. They are all related to appellant, as were the witnesses who testified to her being under 15 years related to the prosecutrix. Appellant in his motion for a new trial swears that he did not know that the prosecutrix had ever been to school to G. W. Lanere, and first learned this fact during the trial of the cas-e by the testimony of the prosecuting witness and her mother. They show that Lanere had left Up-shur county some eight years prior to this trial, and they could not ascertain his present location during the trial. That since the trial they had located Lanere in Bowie county, and files the affidavit of Lanere that the prosecuting witness went to school in 1904, and she was 7 years of age at that time. The testimony of her mother would make her only 3 years old at that time, and hardly within the scholastic age, nor of an age likely to attend school. If Cyrinia was 7 years' old in 1904, she would be 17 in 1914, as contended by appellant’s witnesses. The affidavit of Etha Robison is also attached to the motion for a new trial, and she swears that Cyrinia AVallace attended school in 1904, and that she has known Cyrinia AVallace all her life and associated with her; that they had been raised together. That she, Etha Robison, was 16 years of age, and 'Cyrinia was older than she; that Cyrinia had told her she was a year older than the witness. The affidavit of Mary Tillman is also attached, and she swears that she is a midwife, and that she had been intimately acquainted with the family of Haza AVallace; had known Haza for 36 years; that she knows the age of Cyrinia AVallace, and she is 17 years of age.

None of these witnesses are related to pros-ecutrix nor to appellant, and if they had been present at the time of the trial and so testified, it is probable a different result would have been obtained, for they tie their memory to other facts. Mary Tillman says Cyrinia was born in June, 1898, as contended by appellant on the trial of the case, and all these witnesses would make her 17 years of age at the time of the alleged rape. On the trial it was shown she was a large girl and weighed 144 pounds. The state desires the imprisonment of no one unless a crime has been committed, and this1 testimony would render it very uncertain any crime was committed, even if appellant was guilty of car-nel knowledge of the girl with her consent, which she testifies to, but which appellant most emphatically denies.

I will here state that Judge DAVIDSON and Presiding Judge PREND-ERGAST are of tiie opinion that sufficient diligence was not shown to authorize a new trial on account of the alleged newly discovered testimony, and that by the use of proper diligence it could have been discovered before the trial; but the writer entertains a contrary view. Judge DAVIDSON agrees that the other bills present error, and the case should be reversed, while Presiding Judge PRENDER-GAST is of the opinion that none of them present error and the case should be affirmed. He is of the opinion that as appellant inquired about the census of 1915, and proved by the census enumerator that Haza Wallace first gave the birth of Cyrinia at a date when she would have been 17 years of age in 1914, and after having her attention called to it she changed the date of birth to that given in the blank; that the census blank of 1915 became admissible. To this I do not concur. He also does not think the census blank of 1914 sufficiently proven up to have rendered it admissible, and that the bill in regard to the testimony of J. W. Sharp presents no error, the allegations in the bill, being insufficient and too vague and indefinite, and is a conclusion of the witness.

For the above reasons, without discussing the other matters, we are of the opinion the ease should be reversed and remanded for a new trial. 
      <©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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