
    NOLAN v. STATE.
    (No. 5112.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Rape <®=23, 35(2) — Age op Peosecuteix —Allegation and Proof.
    In prosecution for carnal knowledge of female under 15, in violation' of Pen. Code 1911, art. 1063, it was neccssaiy for state to allege and prove that prosecutrix was under 15 at time of offense.
    2. Rape <®^52(4) — Statutoey Rape — Age of Peosecuteix — Sufficiency of Evidence.
    In prosecution for carnal knowledge of female under 15, in violation of Pen. Code 1911, art. 1063, testimony of doctor, who examined prosecutrix, that he would take her to be less than 15, her relatives being available as witnesses, but not testifying to her age, was insufficient to prove case beyond reasonable doubt.
    Appeal from District Court, Denton County; John Speer, Judge.
    Hilliard Nolan was convicted of rape, and he appeals.
    Judgment reversed, and cause remanded.
    T. B. Davis and Sullivan, Hill & Minor, all of Denton, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction is for rape; the punishment being assessed at confinement in the state penitentiary for á period of five years. ’

The crime charged consists of carnal knowledge of a female under 15 years of age. That was the sole face of the statute (article 1063, P. C.) which was submitted to the jury. The only evidence as to the age was that of a doctor, who examined the prosecutrix, and who, at the close of his testimony, was asked by the state’s attorney the following question:

“She is less than 15 years of age? A Yes, sir; I would take her to be.”

It is apparent from the record that there were available a number of witnesses, who could have testified definitely to the facts with reference to the age of the prosecutrix. She, her uncle, and her cousin were used as witnesses for the state. None of them testified to her age. Before the case went to the jury appellant directed the attention of the trial court and counsel for the state to the meager quantum of evidence upon the subject of age, by requesting an instructed verdict, but no further evidence was introduced on the subject. It was necessary to allege and prove that the prosecutrix was under 15 years of age at the time of the alleged offense. In our opinion the state did not discharge the burden upon it to prove a case beyond a reasonable doubt by the evidence quoted. The case of Lawrence v. State, 32 S. W. 539, was one in which the prosecution was for statutory rape, and the age of consent was 12 years. Both the father and mother of the prosecutrix testified that she was not 12 years old, but were unable to give her age. A physician testified that from her appearance and development he thought that she was 10 or 12 or more. The case was reversed, because the proof was insufficient. In the present case the state’s witnesses, who, from their acquaintance with and relationship to the prosecutrix, were in position to know her age, were not interrogated upon the subject by the state. The only evidence upon the subject given was by the doctor, who is not shown to have had any intimate acquaintance with her, but apparently based his answer, “Yes, sir; I would take her to be,” upon the fact that he had made a physical examination of her. The evidence is less definite than that in the case of Lawrence v. State, supra, and we think insufficient to support the conviction.

The judgment of the lower court is reversed, and the cause remanded. 
      igcssPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     