22 S.W. 1109 | Tex. Crim. App. | 1893
Lead Opinion
Appellant having been convicted of rape, was given the death penalty, from which he prosecutes this appeal.
Under the evidence adduced, it is contended, that the defendant is under 17 years of age, and hence not subject to capital punishment. The offense was committed in July, 1892. Unless he was born prior to July, 1875, he could not be 17 years old at the date of the offense. In regard to this issue, his mother testified, that she was, at the date of the trial, 31 years of age; that defendant was born on November 10, 1877; that he was 16 at the date of his trial; that she was married on the Ware place, and she thinks this occurred in 1876; that defendant was born subsequent *296 to her marriage; that she gave defendant to Dan Murphy in 1883, when he was 6 years old.
George Wilcox stated, he had known defendant since his birth; that he was born on the Ware place; that he thought the defendant was about 16 years old; that he was of illegitimate origin; that he thought he "was a living child at the time of his mother's marriage. * * * I think defendant was born about 1877; was about 6 years old when turned over to Murphy. I might miss his age a year or two. I moved to the Ware place in 1873. Was there about four years before defendant was born. Don't think he can be as much as 16 years old."
Defendant was born on Ware's place. Sheffield said he had known defendant "nine or ten years. Have lived near him, and was living with Dan Murphy when I first knew him. Don't know how long he lived with Murphy at that time."
Dan Murphy testified, that he had "known defendant for nine years, and partially raised him. He looked to be five or six years old when I first knew him, about nine years ago, which would make him about 15 years old. He was given to my wife by his mother." The gift occurred during the year 1883. In rebuttal, the State proved that the mother told the sheriff that defendant was born about April 27, 1877. This is the evidence in the record in regard to the age of defendant. Otherwise than the statement of the mother to the sheriff, it is uncontradicted. Murphy said he was born at the time of his mother's marriage. He also testified that he had known him for only nine years, and he was then five or six years old. His means of knowledge that he was illegitimate is not disclosed by him. There is an unexplained interregnum of five or six years in regard to this witness' testimony. George Wilcox only thought he "was a living child at the time of the marriage," and yet thought defendant was born about 1877. The circumstances detailed by him exclude the idea that his birth could have occurred anterior to 1877. As presented to us, there is no testimony showing that he was born as early as 1875. His mother, at date of trial, November, 1892, was only 31 years of age. This fact stands uncontradicted. If this be true, she was only 15 when defendant was born. From this unusual occurrence the presumption is very strong that appellant was not 17 years of age when he committed the crime, if in fact he is guilty, especially when the State does not undertake to contradict the mother on this point, or endeavor to show that the mother was very young when defendant was born. The evidence, as furnished by the record, shows that defendant was under 17 years of age at the time of the commission of the crime charged against him. The Reporter will report the evidence.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
HURT, P. J., concurs. *297
Dissenting Opinion
I am unable to concur in the decision of this case. It is a case of rape by a negro upon a white woman, the sentence of the jury being death. The only ground upon which the reversal is placed is the insufficiency of the evidence to show that appellant was over 17 years of age. I take it to be the law, that where the guilt of the appellant is shown by the State, the burden of proving his age to be under 17 years rests upon him. Penal Code, art. 35; Ake's case, 6 Texas Cr. App., 398; Jones' case, 13 Texas Cr. App., 1.
The offense is shown to have been committed in July, 1892, and, to be under 17 at that time, appellant had to show, by a preponderance of testimony, that he was born since July, 1875. The only direct testimony as to age is that given as follows: Belle Wilcox, the mother, says he was born November 14, 1877, and was 16 years old November 14, 1892; that she has no data to prove it by; does not know when she was born; that she was married in 1876; and that defendant was born after she was married, and of said marriage. The sheriff, Autrey, states this witness told him defendant was born on the 27th of April, which witness denied stating. George Wilcox says, that defendant is 16 years old, and was born in 1877; that Belle Wilcox married his nephew in 1876, and defendant was a living child at his mother's marriage, and his father unknown; that he was "a woods colt;" that he might miss defendant's age a year or two. Dan Murphy says he partly raised defendant. He got him from his mother when he looked to be 5 or 6 years old, and has had him nine years. He knew Belle Wilcox before he got possession of defendant, and she had no husband when defendant was born, and his father was unknown. John Sheffield says he knew defendant nine or ten years ago, and he was 6 or 7 years old when he first knew him. An examination of this testimony shows, that while his mother and George Wilcox swear to his birth in 1877, it is so utterly contradicted by their other testimony as to be unworthy of credit. If he was 16 in November, 1892, he could not have been born in 1877. Again, both George Wilcox and Belle Wilcox swear to her marriage in 1876, and both George Wilcox and Dan Murphy swear to defendant being a living child at his mother's marriage. The only proof of defendant being under 17 being the contradictory statements of his immediate family, which seem to show that appellant was a living child at his mother's marriage in 1876, and no testimony whatever as to his age then, the jury did not believe the defense; and I do not think the character of the testimony is calculated to inspire any confidence in its truth. It is not sufficient that the testimony may suggest a doubt of appellant being 17 years old, but it is to be proven by him. I think the judgment ought to be affirmed. *298
