
    JACKSON v. STATE.
    (No. 6002.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1920.)
    1. Rape <®=>52(1) — Evidence sufficient to sustain conviction.
    In a prosecution for rape on a girl under 15, verdict held not subject to attack on appeal for want of sufficiency of testimony.
    2. Criminal law <§==>742(I)— Credibility of witnesses a question for jury.
    In a raxje prosecution, where it becomes a question of veracity between prosecutrix and defendant, the questions of the weight of testimony and the credibility of witnesses are for the jury.
    3. Rape <S^>2 — Change of age of consent after act cannot affect the offense.
    Though the age of consent was elevated after defendant’s alleged act of intercourse, such change cannot affect the offense of statutory rape.
    4.Criminal law 172(1) — Erroneous instruction harmless.
    In a prosecution for statutory rape, where it conclusively appeared that the girl was under the then existing age of consent at the time of the alleged intercourse, instructions which were erroneous in applying the subsequent and increased age to the offense were harmless.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    D. Jackson was convicted of rape on a girl under the age of consent, and he appeals.
    Affirmed.
    Feagin, German & Feagin, of Livingston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the offense of rape on a girl under 15 years of age, and awarded 5 years in the penitentiary.

The girl testified that appellant had intercourse with her three or four times; that she was under 15 years of age; that as a result of this intercourse there was horn to her a child, and at the time of this trial it was 1 year and 3 months of age. She was about 16 years of age at the time she testified, but was under 15 at the time of the alleged intercourse. The appellant denies the transaction. The girl said nothing about the matter until her mother discovered her pregnancy, which she stated was about 4 months subsequent to the time of the illicit intercourse. She never told her mother the name of the party who had debauched her, and did not disclose it to any one until she went before the grand jury. Her mother and father corroborated her on this phase of the case. They asked the girl on the witness stand if she had not told her father and mother that a boy living at Kickapoo was the author of her disgrace and shame. She denied it. The father and mother both denied such conversation. Appellant testified, denying that he had ever had intercourse with the girl, and stated that in his presence the conversation occurred as to the condition of the girl, and that she told her father and mother that this boy from Kickapoo was the author of her shame. Appellant was prosecutrix’s brother-in-law, having married her elder sister, living on the place, and working on the farm of his father-in-law. This is the substance of the case.

That somebody had intercourse with the girl would seem to be evident, for she gave birth to a child. This would not have happened, unless some man had had intercourse with her. It became a question of veracity between the girl and the appellant on the main facts as to the intercourse. The weight of the testimony and credibility of Witnesses was a matter upon wliicli the jury had the right to pass, and it was incumbent upon them to decide these matters. They could have believed the appellant and acquitted him, and could have believed the state’s testimony and convicted him. The jury evidently believed the state’s testimony and convicted. We would not feel justified, under the circumstances, in reversing this judgment for want of sufficient testimony.

The court charged the jury that, if they found the girl to be under 18 years of age at the time of the intercourse, this would be sufficient on the question of nonconsent. At the time the intercourse occurred she was under 15 years of age. At the time she testified she was not 18. The Legislature saw proper to re-enact the statute and elevate the age to 18. This was after this occurrence. The age of the girl at the time of the intercourse woufyl be the criterion, and not at the time of the trial. If appellant had intercourse, as testified, with the girl before she was 15 years of age, he was guilty under the law as it then stood, so far as age is concerned. The fact that the Legislature elevated the age of consent to 18 years would not change that aspect of the case. If there had been a doubt under the testimony as to the age, whether she was over or under 15, and such question was an issue, this charge would have been error; but as there was no issue on that fact, and the evidence showed conclusively she was under 15 years of age, the charge with reference to the age of 18 would not be a serious error. The charge of the court, therefore, informing the jury they could convict if she was under 18 years of age, would make no particular difference, as it could not have injured appellant in any way by reason of the facts above stated. The jury could not have been misled by reason of such charge. If the jury could have convicted on account of the girl being under 18, and the 'testimony was doubtful as to whether she was above 15, the error would have been reversible.

Taking the case as presented, we are of opinion the judgment should be affirmed. 
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