
    JEFFERSON v. STATE.
    (No. 5417.)
    (Court of Criminal Appeals of Texas.
    June 18, 1919.
    On Motion for Rehearing, Oct. 15, 1919.)
    1. Criminal law ©==>1144(13) — Sufficiency OF EVIDENCE TO SUSTAIN FINDING AS TO AGE OF DEFENDANT.
    Upon a hearing before the- court in a criminal case to pass upon defendant’s affidavit of juvenility, although the introduction of defendant’s statement, while under arrest, of his age, may have been in violation of rules against the admission of confessions, thej presumption obtains that there was sufficient legal testimony upon which the court based its judgment that defendant-appellant, was more than 17 years of age.
    2. Criminal law ©=>444 — School census REPORT ADMISSIBLE AS EVIDENCE OF DEFENDANT’S AGE.
    In a criminal proceeding, before the court, upon defendant’s affidavit of juvenility, the admission in evidence of a school district census report which the census taker identified as having been made by him, and which was produced from the custody of its proper custodian,- the county superintendent of schools, was proper to show date of defendant’s birth, notwithstanding the census taker could not identify the person who gave him the information as defendant’s mother, or guardian.
    3. Criminal law ©=>814(5) — Instruction NOT TO CONSIDER EVIDENCE OF FORCE PROPERLY REFUSED WHERE RAPE WAS CHARGED.
    The court’s refusal to give a special charge requested by defendant that the jury be instructed not to consider the evidence of force, or that there was blood or-, wounds on the 15 year old injured female, was proper where the indictment contained counts charging rape both statutory and by force.
    4. Criminal law ©=>734, 814(8, 9) — Question OF JUVENILITY OF DEFENDANT WAS FOB THE COURT.
    In a criminal prosecution, the matter of defendant’s age raised by his affidavit of juvenility being for the court alone, it was prop.er to refuse to tell the jury they could not convict if they believed him under 17 years of age at the time of the alleged offense, where there was no question as to his being of sufficient age to make him legally responsible.
    5. Criminal law ©=>1147 — Decision as to JUVENILITY DISCRETIONARY MATTER NOT REVIEWABLE.
    Code Or. Proc. 1911, art. 1195, putting the burden of proof as to juvenility upon defendant and requiring that the judge be satisfied that accused is less than 17 years of age, places large discretionary power in the trial judge, and his decision will not be reviewed unless manifestly wrong.
    6. Rape @=52(1) — Evidence sufficient to SUSTAIN CONVICTION.
    In a prosecution for rape of a 15 year old girl, evidence held sufficient to prove defendant’s guilt beyond controversy.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Thomas Jefferson was convicted of rape, and he appeals.
    Affirmed.
    J. Webb Stollenwerck, ' of Hillsboro, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted of the rape of a 15 year old girl, and his punishment fixed at ■ 10 years’ confinement in the penitentiary.

It is claimed, on appellant’s behalf, that he was under 17 years of age at the time of his trial. An affidavit was filed setting forth his age, and this matter was presented to the court, who, after hearing evidence, entered an- order and judgment that appellant was more than 17 years of age, and he was accordingly tried and convicted as in an ordinary felony.

Appellant presents two bills of exception complaining of what transpired upon the hearing before the court in the introduction of testimony in order to enable the court to pass upon his affidavit of juvenility. We think the introduction before the court of his statement while under arrest, of his age, is in violation of our rules against the admission of confessions. Oliver v. State, 81 Tex. Cr. R. 529, 197 S. W. 185. But as the matter was before the court, the presumption obtains that there was sufficient legal testimony upon which the court based its judgment.

The complaint against the admission before the report of the census report of the Itasca school district for the year 1918-19 is without force. The census taker identified said report as having been taken and made by him, and it "was produced from the custody of the county superintendent of schools, who was the proper custodian thereof. Same showed the name of appellant as a scholastic, and that the date of his birth was such as to make him more than 17 years of age. The fact that the census taker could not identify the person whose name was attached to said report, nor of his own knowledge state that she was the mother or guardian, went to the weight of said testimony, which was for the court in that character of inquiry.

Appellant asked that the jury be instructed not to consider the evidence of force, or that there was blood or wounds on the injured female. The court’s refusal to give said special charge was proper, there being two counts in the indictment, one charging statutory rape, and the other'rape by force.

Appellant also asked that the jury be told that they could not convict if they believed him under 17 years of age at tire time of the commission of the alleged offense. This was properly refused. The matter of appellant’s age was before the court only as bearing upon the question of his juvenility, which was a matter for the court; and not for the jury. The question of his age, we further observe, is confined to the time of the trial and not the time of the commission of the offense. There being no question in the case as to. the fact of appellant being of sufficient age to make him legally responsible, the court did not err in excluding from the jury evidence as to the appellant’s age, nor in refusing to dismiss the case after the evidence was concluded.

Appellant’s affidavit that he was a juvenile was controverted by the state, and upon this issue evidence was heard, at the conclusion of which the court entered his order and judgment refusing to dismiss said indictment. There is no approved statement of the facts heard by the court, but there is in the record what purports to be a bill of exceptions containing over 30 pages of questions and answers. No ground of exception is stated anywhere, in said bill. As originally presented in the record, said bill of exceptions was not signed by the court, nor was there any concluding portion ’.to said bill as prepared by his counsel; but the same has been corrected, and the correction considered by us. The court qualifies this purported bill of exceptions with the statement that he heard the witnesses offered, and their testimony was so contradictory as to lead him to believe the same false. There was some evidence offered by the state in rebuttal of that of appellant on the question of juvenility. Article 1195, O. O. P., puts the burden of proof, in matters of this kind, upon the appellant, and its requirement is that the evidence must be such as that the trial judge is satisfied therefrom that the accused is less than 17 years of age. The repetition in said article, twice, of the fact that the evidence must satisfy the trial judge that the accused is less than 17, would seem to indicate an intention on the part of the Legislature to place large discretionary powers in such trial judge in determining this question. Evidently the lawmakers must have had in mind the ease with which the issue of the exact age of one charged with crime, and who might have been either a little over or a little under the age of 17, might, be beclouded, and that the result of a decision of this question could only be to affect the place of confinement and not the question of guilt or innocence. It seems the Legislature did not expect the decision of the trial judge in this matter to be reviewed, except it was manifestly wrong, which we cannot say of the decision of the court in the instant case.

The fact of appellant’s guilt was beyond controversy. The girl upon whom the rape was committed was only 15 years of age. She and two other negro children testified positively to the fact of the assault, and her bruised and bloody condition was testified to by several other people who saw her soon afterward, and, in addition to the two children and the prosecutrix, two white men were called as witnesses for the appellant, who were passing along the road not a great distance away, and saw part of the occurrences, and what they state fully corroborates the state’s witnesses.

There being no reversible error in the record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

In an able and extended motion for rehearing, appellant contends that we should have held the trial court in error for adjudging appellant to be over 17 years of age at the time of the presentation and hearing upon his affidavit of juvenility.

The bill of exceptions to the action of the trial court in this matter is very lengthy, and sets out in extenso the testimony adduced on the preliminary hearing. Said bill is qualified by the statement of the trial court that the witnesses for the appellant gave testimony so contradictory and inconsistentes to make it incredible. We have gone over this testimony given by the aunt, father, and mother of appellant (all being negroes), and must say that we are not disposed to criticize the view taken of it by the trial court. Each of said witnesses stuck to the fact that appellant was born November 3,. 1902, and was therefore 16 years of age at the time of said hearing in 1919; but their testimony upon cross-examination is such that we can easily see how the trial court discredited same. The aunt said she had lived in Ft. Worth for 14 years preceding the hearing, and had lived in McLennan county 4 years next before moving to Et. Worth, and that previous to tliat she lived in Bell’ county, during which residence and in which county appellant was born. If this was true, appellant was considerably over 16 years of age at said time. Appellant’s mother said she was born in November, 1882, in Bastrop county, and moved to Bell cotmty in June, 1900, and that soon after she reached Bell county she began keeping company with the father of appellant and became pregnant by him within a year thereafter; appellant being the result.

Appellant, was born in November, and from his mother’s testimony it would appear that his probable birth was November, 1901, which coincides with the age of appellant as same appears on the census report of the Itasca colored schools, which report is also in evidence. The burden being upon the appellant to prove that he was under 17 years of age at the time of said hearing, if he failed to discharge this burden it was the duty of the trial court to refuse his motion to dismiss on account of juvenility. The exercise of his sound discretion by the trial Qourt should not be reviewed by us unless we are convinced that such action was unsupported by and contrary to the credible evidence. This we are not prepared to hold in the instant case, and the motion is overruled. 
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