
    FORD v. STATE.
    (No. 4840.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Criminal Law <@=>396(2) — Use oe Doc.tt- ■ MENTABY EVIDENCE.
    Affidavit of prosecutrix’s father, made for school purposes, stating that she was born October 27, 1902, having been introduced by the state on prosecution for assault with intent to rape a girl under 15 years of age, another part of it stating the next child was born in April, 1903, was admissible for defendant, if not as original evidence, as impeaching evidence.
    2. Criminal Law <@=>434 — Evidence oe Age —Church Recobd.
    A church record of the birth and baptism of a child is admissible on the issue of her age on prosecution for assault on her with intent to rape, the indictment charging that she was under the age of 15 years.
    Appeal from District Court, Fannin County; R. T. Lipscomb, Special Judge.
    Bias Ford was convicted, and appeals.
    Reversed and remanded.
    Couch & O’Keefe and J. W. Gross, all of Bonham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to rape; his punishment being assessed at two years’ confinement in the penitentiary.

It is more than questionable whether the evidence would support a conviction for assault to rape, but it is not intended here to discuss that phase of the record.

The indictment charged appellant with committing the assault upon a girl under 15 years of age. The evidence does, not show positively that prosecutrix is under the age of 15 years, and does not directly show that she was not the wife of appellant. The record is silent, except by innuendo or inference, as to whether she was his wife. This matter ought to be made clear. No witness swore in the case that she was not the wife of defendant. This whole matter could have been settled by asking the prosecutrix, or her father, the plain question as to whether she was or was not the wife of defendant, which was not done. Perhaps it might be inferred by putting one presumption upon another that she was not the wife of appellant, but matters of this sort should not be left to vague inference and deduction. The father testified that the prosecutrix was born on the 27th of October, 1903. The girl did not know her age. The enumerator or census taker of school children took the affidavit of the father of prosecutrix to the ages of his children, in which the father stated prosecutrix was born on the 27th of October, 1902. This was permitted to go to the jury. Appellant then proposed to prove from the same document and over the same oath by the father that he stated the next child was horn in April, 1903. The court would not permit this to go to the jury. In this we think there was error. From the 27th of October to some day in April is rather a short interregnum for the birth of two children. If they were twins the deliverance was a long ways apart. This testimony should have gone to the jury; if not as original testimony, as impeaching evidence.

Appellant also offered the register of the birth and baptism of the girl in St. Joseph’s Church in Oklahoma. This was in accord with the church custom, the supposition being that the people were Catholic. The record would have shown, and is property verified, that the girl was born on the 27th day of November, 1901, and that she was baptized on the 29th day of December, 1901. When this testimony was offered, the court declined to hear it, and exception was reserved. In this we think the trial court was in error. See Howard v. Russell, 75 Tex. 171, 12 S. W. 525; Lewis v. Marshall, 5 Pet 470, 8 L. Ed. 195; Hunt v. Order of Chosen Friends, 64 Mich. 671, 31 N. W. 576, 8 Am. St. Rep. 855; Garrett v. State, 42 Tex. Cr. R. 524, 61 S. W. 129. This testimony should have gone to the jury. The father had sworn that the girl was born in October, 1903, in Oklahoma, and had sworn in an affidavit furnished the enumerator of school children that she was born the 27th of October, 1902. The baptismal record of his church shows that she was born on the 27th of November, 1901, and baptized on the 29th day of December, 1901. This testimony bore directly and strongly upon the question of age. The indictment charged she was under 15 years. This evidence would have shown, if she was born in 1901 as this record would indicáis, that she was beyond the age of 15, and appellant could not be convicted under this indictment. It is deemed unnecessary to discuss the evidence.

The judgment is reversed, and the cause remanded. 
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     