Earnest v. State

• Decision Date: 11 December 1912
• Citation: 152 S.W. 638
• Parties: EARNEST v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 638

EARNEST v. STATE.

Court of Criminal Appeals of Texas.

December 11, 1912.

Rehearing Denied January 15, 1913.

Appeal from District Court, Lynn County; H. C. Randolph, Special Judge.

Myrtle Earnest was convicted of aggravated assault, and she appeals. Affirmed.

G. E. Lockhart, of Tahoka, W. D. Benson, of Lubbock, E. S. Rowe, of Plains, G. W. Perryman, of Tahoka, Percy Spencer, of Brownfield, and L. W. Dalton, of Plainview, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant was indicted, charged with the murder of her little two or three year old girl. When tried she was convicted of committing an aggravated assault on the child.

The justice of the peace testified that on the night of June 1st he was notified of the death of the little girl, and he and Dr. Bickley and others went to the residence of defendant next morning and examined the body of the child. In describing the appearance of the body, he says: "I saw marks on its back, and towards the lower end of the back there were lacerations of the skin, broken at these marks. These lacerations, I would estimate, were from 3/4 of an inch to 1¼ inches long, and some might have been possibly 1½ inches long, and the marks themselves were from 2 inches to 4½ inches; but I think there was but one mark, and that was on the right side, that approached 4½ inches in length, or, if not, then very near that, and these marks, from the best of my recollection, not measuring them, I think were about 1/2 inch apart, and then in the center of the back there were some of them crossed. Those on the left side were at a greater angle from the spinal column than those on the right, while none of them were parallel with the spinal column; and then there were marks just under the shoulders, the top part of the back, that reached down nearly to the point of the shoulder blade. They were not so thick on the top of the back, but to the best of my recollection I would say 6 or 8 up there. There was a discoloration about the face, on one cheek and up onto the forehead. I can't tell anything only it was a discoloration, purplish in hue." Dr. Bickley testified that he examined the child after its death, saying: "I found marks and stripes running in different directions on the child's back when I turned it over. I don't think I could approximate the number—25 or more. There was a great number of them. They were from the shoulders beyond the hips. Some of them had the appearance of breaking through the outer covering of the skin; the outer part, just the outer part. From my examination the marks looked to be of different ages. I don't think I could approximate the number of them that had cut through the skin. I don't know the number, whether it might have been one-fourth or one-half of them. I don't remember. There was a dark splotch on the bowels. As well as I remember, on the right side a little below and to the right of the umbilicus—above the groin. I suppose the splotch was about the size of a dollar; something like that, as well as I remember. I do not think I noticed any bruises on its face anywhere. As well as I remember, there was a splotch along here, on its cheek. The skin was not broken or lacerated, just a mark, and that was the only thing I found anywhere about its face or head. I had seen that child in its lifetime. I would suppose it was about 2½ years old, or possibly somewhere along there, at the time of its death. It was a girl. I always considered it a healthy looking child. I considered it a bright, active child." However, he would not testify positively that these wounds caused its death, although he stated if the wound in the stomach was inflicted with sufficient violence it might do so. No other witness testified positively that this caused its death, and this probably accounts for the fact that the jury did not find appellant guilty of murder in any degree.

No one saw appellant inflict any of these blows. This was her child by a former husband, she having recently married Will Earnest. It is earnestly insisted that the testimony is insufficient to sustain a conviction, as no one saw her inflict these wounds. That some one was guilty of grossly mistreating this child is amply proven by the above testimony. She and her husband and the child lived together; no one else living with them, so far as this record discloses. So the facts and circumstances would clearly point to her or her husband as the person who had thus inhumanly whipped the child; no other person having an opportunity to do so, as disclosed by the record. She nor her husband either testified in the case, as they had a right not to do. So we must examine the record and see if the facts and circumstances individuate which one of the two...