Daywood v. State, 25756

Citation248 S.W.2d 479,157 Tex.Crim. 266
Decision Date26 March 1952
Docket NumberNo. 25756,25756
PartiesDAYWOOD v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Paul T. Holt, J. J. Brady, Jr., Austin, for appellant.

Bob Long, Dist. Atty., Thomas D. Blackwell, Asst. Dist. Atty., Travis County, George P. Blackburn, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is indecent fondling of a minor; the punishment, five years.

Mrs. Mayer, a widow and mother of the injured child, testified that, on the day charged in the indictment, she had left her seven-year old daughter at the house of Mrs. Voigt, a baby sitter; that, at the close of the day, she and her gentleman friend went to the house of the baby sitter to retrieve her daughter; found her being dressed; and that shortly thereafter they left with the child. Mrs. Mayer testified further that, after they had driven less than a block, the child grabbed herself between her legs and said, 'That man hurt me so bad'; whereupon, they immediately returned to the house from which they had just left and were met by appellant, who was in the process of leaving; and that the child said, 'That is him'; that she and her male companion accosted appellant; and the entire group re-entered the baby sitter's house, where she questioned appellant about molesting her daughter, which he denied. Mrs. Mayer testified that she, her companion, the appellant and her child went to the hospital, where an examination was made of the child and where appellant was arrested.

Dr. Glynn testified that he examined the child on such occasion and found three small abrasions just to the left of the vagina inside the sexual part of the child, on each of which he found at least a drop of fresh blood, and that, in his judgment, the injuries could not have been more than an hour or two old and could have been caused by a fingernail.

Mr. Brack, Mrs. Mayer's companion, testified and corroborated her testimony, and stated that the child had repeated her accusations against appellant in his presence immediately upon their return to the baby sitter's house.

It was established by the testimony of peace officers that the underpants worn by the Mayer child had thereon stains of human blood and were not torn.

The injured child testified that, on the night in question, at a time when the baby sitter had gone to the bathroom, the appellant spit on his finger and put it in her private part several times, which caused her to hurt. Under cross-examination, she denied that she had fallen during her tree climbing earlier in the day.

The eight-year old son of the baby sitter testified that, during the course of his play with the Mayer girl during the day in question, she had fallen and straddled the limb of a tree. On cross-examination by the State, the boy testified that, while his mother was out of the room, appellant came over and sat on the side of the bed, patted the Mayer girl on the back, which caused the child to whimper and whine; and that his mother, upon her return to the room, asked the child what was the matter; and the Mayer girl had told her that appellant had fooled with her.

Mrs. Voigt, the baby sitter, testified that she had been keeping company with appellant for some time, and that appellant was at her house on a visit on the night in question, and denied that appellant had in any way molested the Mayer child, and supported her son's account of the fall from the tree.

Appellant testified that, on the night in question, he had left his wife at a picture show and had gone to visit Mrs. Voigt, denied that he had molested the Mayer girl, and stated that thirty minutes had elapsed between the departure and the return to Mrs. Voigt's house of the Mayer party, and admitted that he had called Mrs. Voigt immediately upon being released under bond at 10:00 a. m. Monday morning.

The State called a detective in rebuttal, who testified that, on Monday morning, he had gone to the home of Mrs. Voigt, in the course of his investigation, and she had told him certain incriminating facts against appellant and agreed to sign a statement containing them; but that, when he contacted her again about noon, she refused to sign any statement at all.

We find the evidence sufficient to support the verdict.

We shall attempt to discuss appellant's bills of exception in the order advanced in this Court as grounds for reversal.

Bill of exception No. 2 complains of the court's failure to charge on aggravated assault. At this juncture, it will be noted that, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged. We here observe that the record contains no evidence raising the issue of aggravated assault. We proceed, however, to discuss appellant's contention in this respect. He contends that, since the assault in question necessarily inflicted disgrace upon the injured party, then the case came within the terms of Subdivision 5 of Article 1147, P.C., Vernon's Ann.P.C. art. 1147(5), and he was entitled to have the jury charged on the primary offense and also on aggravated assault.

In order to understand appellant's contention, it is necessary to observe the following:

The 51st Legislature enacted the indecent fondling statute, now Article 535d, Penal Code.

The same Legislature re-enacted Article 1147, Penal Code, as amended, to read, in part, as follows:

'An assault or battery becomes aggravated when committed under any of the following circumstances: * * *

'(9) When committed by an adult male upon the person of a female or child or by an adult female upon the person of a child.

'This sub-section (9) of Section 1 shall not apply to the act of a person who fondles the sexual parts or places, or attempts to place his or her hand or hands upon or against the sexual parts of a male or female under the age of fourteen (14) years, or who fondles or attempts to fondle, or places or attempts to place his or her hand or hands, or any part of his or her hands upon the breast of a female under the age of fourteen (14) years, which acts are elsewhere made unlawful.'

Subsection (5) now reads:

'When the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault or battery with a whip or cowhide.'

In connection with Subdivision (5), we find no provision such as that following Subdivision (9).

Article 694, C.C.P., provides:

'In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, but guilty of any lower offense included.'

Article 695, C.C.P., enumerates offenses which include different degrees.

We have held Article 695 not to be exclusive if every constituent element of the lesser offense be alleged in the indictment and if there is no repugnancy between the constituent elements of the lesser offense and those of the offense charged. Tomlin v. State, Tex.Cr.App., 233 S.W.2d 303.

We now apply this test to Subdivision (5) above and to the indecent fondling charge against appellant.

A very constituent element of a violation of Subdivision (5) is the infliction of disgrace.

The indecent fondling charge has no allegation of the infliction of disgrace, nor is lack of consent an element. In fact, we have held, in Jones v. State, Tex.Cr.R., 238 S.W.2d 529, that the effect upon the person assaulted is immaterial and that the gravamen of the offense is the intent of the person committing the assault.

We therefore conclude that, since all of the essential elements of the offense denounced in Subdivision (5) of Article 1147 are not alleged in the instant indictment, the offense of aggravated assault is not included as a lesser offense.

Bill of exception No. 10 reflects that officer Rosen had been called by the State in rebuttal and gave testimony in conflict with that given by Mrs. Voigt, a defense witness, concerning certain conversations he had with her out of the presence of the appellant. Upon objection being made, the district attorney stated that the sole purpose of the testimony was to impeach the witness Voigt.

At the close of the testimony of officer Rosen, the court instructed the jury orally as follows:

'Gentlemen of the jury, the testimony of Mr. Rosen relating to the statements made by Mrs. Voigt are permitted to come before you solely for the purpose of impeaching the testimony of Mrs. Voigt, if you find it does so impeach the testimony, but you must not consider said testimony in any way in connection with establishing the guilt or innocence of the defendant.'

We are unable to agree with appellant's present contention that the court's instruction constituted a comment upon the weight of the testimony. The qualification as to the impeaching nature of the statement attributed by this...

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