
    (86 Tex. Cr. R. 348)
    WOOLDRIDGE v. STATE.
    (No. 5518.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.
    On Motion for Rehearing, Jan. 14, 1920.)
    1. Rape <&wkey;53(5) — Nonage sufficiently shown.
    In prosecution of an assault with intent to rape, evidence as to the nonage of prosecutrix held sufficient.
    2. CRIMINAL law <&wkey;421(3) — Prosecutbix COMPETENT TO STATE HER AGE.
    Prosecutrix, who stated that all she knew of her age she got from her adopting parent, the defendant, who .had told her that she was 1% years of age when adopted, could testify that she was 13 years old at time of alleged rape.
    3. Criminal law <&wkey;478(l) — Witnesses competent TO GIVE OPINIONS AS TO AGE OF PROSECUTRIX.
    Witnesses, who stated that they were familiar with children and their ages by reason of having been managers for a number of years of an orphanage and who had seen prosecutrix soon after alleged rape and had known her intimately since, were competent to testify that in their judgment she was 12 or 13 years of age.
    4. Rape <&wkey;6, 16(5) — Force required to constitute OFFENSE.
    In rape or assault with intent to rape, female being under age of consent, only so much force is required as may be necessary to effect penetration.
    On Motion for Rehearing.
    5. Criminal law <&wkey;406(5) — Statement of DEFENDANT AS TO AGE OF FEMALE ADMISSIBLE.
    Evidence of prosecutrix that defendant, who had adopted her, told her her age, was admissible, as a statement against defendant’s interest.
    6. Criminal law <&wkey;1159(4) — Verdict disturbed ONLY FOR JURY’S ABUSE OF DISCRETION.
    Jurors are primarily the judges of the credibility of the witnesses and the weight to be given their testimony, and, unless there appears a manifest abuse of discretion, verdict should not be disturbed.
    7. Criminal law <&wkey;494 — Weight of expert TESTIMONY IN CONFLICT WITH OTHER EVIDENCE.
    Conviction of assault with intent to rape held wax-ranted, although prosecutrix testified that defendant had sexual intercourse with her, while a doctor who examined her testified that in his opinion a man could only have had partial intercourse.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    John Wooldridge was convicted of assault with intent to rape, and appeals.
    Affirmed.
    Llewellyn & Kitching, of Marlin, for appellant.
    C. M. Cureton, Atty. Gen., and John C. Wall, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case, appellant was charged in the district court of Falls county by an indictment containing a number of counts, among which were rape, assault with intent to rape, etc. On the trial, the court submitted to the jury only the count charging rape, and the count charging assault with intent to rape; and under this charge appellant was. convicted of assault with intent to rape, and his punishment was fixed at four years’ confinement in the penitentiary, from ■ which he appeals. The injured female was alleged to be under the age of consent.

The appellant first claims that the verdict is without support, by reason of lack of evidence as to the nonage .of the prosecutrix. Upon this point it will be noted that the girl swore that she was 13 years old at the time of the alleged offense. Mr. and Mrs. R. A. Burroughs each testified that they were familiar with children and their ages, by reason of having been managers for a number of years of an orphanage where there were several hundred children, and that they saw the girl in question soon after this offense was alleged to have been committed, and when ,she was brought to the orphanage; that they had known her intimately since; and that in their judgment she was at that time 12 or 13 years of age. The weight of this testimony was for the jury, and we are unable to conclude that the jury’s belief of the same was not sufficient to justify their verdict.

A bill of exceptions, was reserved to the action of the trial court in overruling appellant’s objection to allowing the prosecutrix to state her age, but no ground' of this exception is set up in the bill. The girl stated that all she knew as to her age she got from appellant, who had adopted her when she was a baby; that he had told her that she was only 1 y2 years old when he adopted her, which would make her 13 at the time of this prosecution.

It is the law of this state that such a witness might state her age, based on what her parents had told her. Sheppard v. State, 56 Tex. Cr. R. 605, 120 S. W. 446; Curry v. State, 50 Tex. Cr. R. 159, 94 S. W. 1058.

We think this rule applies to one testifying to her age, based on statements made to her by one who had adopted her when an infant, and who then stood to her in loco pa-rentis, and from whose statements she derived her only knowledge as to her age. In this case, however, the testimony of the girl on this point is supplemented by that of two witnesses, who stated that they heard appellant testify at another time and place that he had adopted the child when only 1% years old.

The second contention of appellant' is contained in his second assignment of error, and has been substantially disposed of in what we have just stated; the said contention being that the trial court should not have allowed the prosecutrix to state her age, the same being based on what appellant had told her.

There appear in the record two bills of exceptions substantially alike, reserved to the action of the court in admitting the testimony of Mr. and Mrs. Burroughs, the objection being that their testimony as to the age of the prosecutrix, based on her appearance, etc., was merely an opinion, and they, not being experts, should not be allowed to* give such opinion. We doubt if expertness is a necessary condition in such case, but, if it were, these two had that experience which qualified them to testify as experts. In Donley v. State, 44 Tex. Cr. R. 428, 71 S. W. 958, this court held it error for a trial court to refuse to permit certain witnesses hr testify that they knew the prosecutrix some years before, and from her size and appearance at that time, in their opinion, she was about eight years old. See, also, Donley v. State, 44 Tex. Cr. R. 428, 71 S. W. 958; Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; Boulter v. State, 70 Tex. Cr. R. 197, 157 S. W. 166.

The court submitted in his charge assault to rape as well as rape, and there was an exception to the charge on assault with intent to rape, because there was no evidence of force. In this character of rape, or' assault to rape, only so much force is required, as may be necessary to effect penetration, and this was plainly testified to by the pros'eeutrix, and the law applicable to such force was pointedly submitted to the jury.

Finding no error in the record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant brings this case before us upon, his motion for rehearing. We have carefully reviewed the record, and see no reason for changing our former opinion.

The evidence of the prosecutrix that appellant. told her her age was admissible,, both as a statement against his interest made-by the accused, and as a statement relative to her age made by one standing in loceparentis.

The jury are primarily the judges of the credibility of the witnesses, and the weight to be given their testimony; and, unless there appears a manifest abuse of their discretion in these matters, a verdict should not be disturbed by us.

We do not think the statement made to the witness Woodward by the prosecutrix, nor the letter written by her to appellant, after the alleged commission of the offense, constitute such matters as would justify us in saying that the jury had no right to accept as true her statement of appellant’s treatment of her.

Nor do we think a conviction of assault with intent to rape unwarranted because of the fact that prosecutrix testified that appellant had sexual intercourse with her, while the doctor who examined her shortly after the occurrence testified that because of the smallness of her private parts, in his opinion, a man could only have had partial intercourse with her. The physician said that, at the time of his examination, the private parts were inflamed and sore and very tender, and, coupled with her statement as to what appellant had done to her, we think the jury were in their province in concluding that what she thought to be an act of intercourse was no more than an attempt on the part of the appellant.

We also think the testimony sufficiently strong to show that character of force necessary under our decisions and statutes, when the assaulted party is under the age of consent, and that the court’s charge with reference thereto was not error.

The motion for rehearing is overruled.  