was charged by indictment with the crime of rape, alleged to have been committed by him on the 16th day of April, 1890. He was indicted on the 1st day of May, 1890; tried on the 14th day of May, 1890; convicted, and his punishment was assessed by the verdict of the jury and judgment of the court at death. There is direct and positive evidence on the part of one or more of the witnesses, and strong circumstantial testimony on the part of other witnesses, proving that at the date of the commission of the crime the appellant had not attained the age of 17 years. The evidence that he was 17 years old at the time of its commission is, in our opinion, wholly insufficient. It is expressly provided by our code that “a person for an offense committed before he arrived at the age of 17 years shall in no case be punished with death.’’ Penal Code, art. 35.
It is unnecessary to discuss the other questions raised on the record, as they are of a character not likely to arise at another trial; and some of them are not entitled to be considered because no bills of exception were saved at the time of the adverse ruling complained of.
Because the evidence as to the age of appellant is wholly insufficient to support a judgment inflicting the death penalty, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.