Smith v. State , 41 Tex. 352 ( 1874 )

Gould, Associate Justice.

The indictment charges the offense of assault with intent to rape, substantially in the language of the statute, (Pas. Dig., arts. 2156, 2184,) and was, we think, sufficient.

The record discloses that the injured party was a child in her fourth year at the time of the offense, (August 14, 1871,) and at the time of the trial in the seventh year of her age. It appears by the bill of exceptions that the court held that she was “too young to testify,” and ordered her parents, after proving the injuries found on the person of the child at the time, to prove her statements made to them immediately after the occurrence, charging defendant with the act, and giving some of its details.

The law is believed to be settled, “that where a child is unfit to be sworn, it follows, as a necessary consequence, that any account of the transaction which it may have given to others ought not to be admitted.” (1 Phillips on Ev., 5; 1 Russ, on Crimes, 695; 1 Chit. Crim. Law, 190; Starkie on Ev., 117; Regina v. Guttridges, 9 Cox & Payne, 471, (38 Eng. Com. Law, 188;) People v. McGee, 1 Denio, 24.)

There was error in admitting this testimony. The record shows that, after his motion for new trial and in arrest ■of judgment were overruled, defendant gave notice of appeal, but that the court nevertheless proceeded to pronounce sentence upon him, and ordered that he be conveyed to the penitentiary as soon as practicable after the adjournment of the court.

This was in plain violation of the law, which provides that, “in cases of felony, where an appeal is taken, sentence shall not be pronounced, but shall he suspended until the decision of the Supreme Court has been received.” (Pas. Dig., art. 3148.)

The judgment is reversed and the case remanded.

Reversed and remanded.