
    DECEMBER 2, 1936
    Fidel Fernandez v. The State.
    No. 18611.
    Delivered December 2, 1936.
    The opinion states the case.
    
      W. Owen Dailey, of Houston, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for seven years.

Prosecutrix, Andrea Silva, testified, in substance, as follows: About the 12th of September, 1935, appellant attacked her and had an act of sexual intercourse with her. She ran to the home of the sheriff to report the matter. No one was at home and she returned to the house where she worked and where appellant had assaulted her. Appellant again attacked her and had an act of sexual intercourse with her. At the time she was about 17 years of age. She had never had an act of sexual intercourse before.

On the day of the assault a physician examined prosecutrix. He testified that her clothing was bloody; that her female organ was lacerated and bleeding; and that her hymen had been ruptured.

Appellant did not testify, and introduced no witnesses.

Appellant contends that the proof is insufficient to show that prosecutrix was under the age of 18 years, as alleged in the indictment. Prosecutrix testified positively on her direct-examination that she was under 18 years of age. On her cross-examination she stated that she had never been to school and that she did not know the year she was born. We think her testimony warranted the conclusion of the jury that she was under 18.

Appellant attaches to his brief instruments which were not introduced in evidence and which were not before the trial court. Under the circumstances, the matters they relate to can not be considered by this court on the appeal.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  