Gottschalk v. State

• Decision Date: 07 May 1952
• Docket Number: No. 25712,25712
• Parties: GOTTSCHALK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 473

248 S.W.2d 473

157 Tex.Crim. 276

GOTTSCHALK v. STATE.

No. 25712.

Court of Criminal Appeals of Texas.

May 7, 1952.

Dally & Alexander, Borger, by Jack Alexander, Borger, E. T. Miller, Amarillo, for appellant.

Robert G. Gallaway, Dist. Atty., Borger, George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Commissioner.

This is a conviction under the so-called fondling statute, art. 535d, Vernon's P.C. ¹ , with punishment assessed at ten years in the penitentiary.

The conviction was predicated upon the allegation of the indictment to the effect that appellant unlawfully and with lascivious intent placed his hand upon the sex organ of Johnny Morrow, a male person under fourteen years of age.

Morrow, thirteen years of age and in the seventh grade at school, had a newspaper route. The appellant, a doctor, lived alone in the same neighborhood and was a subscriber to the paper Morrow delivered. Carl Mitchell and a number of other boys living in the community were all friends of the appellant. Mitchell introduced Morrow to the doctor at the latter's home. Thus began a friendship between appellant and Morrow, who, along with the other boys, feely visited the doctor in his home, where they drank 'cokes' and read comic books.

About 7:45 o'clock on the morning of June 12, 1951, after delivering his papers, Morrow stopped by appellant's home. Appellant, in his pajamas, was seated on a couch reading his paper when Morrow entered the room, took a seat by the side of appellant, and began reading a 'funny book.' When the boy finished reading, appellant asked him into his bedroom. At appellant's instance, Morrow lay down on the bed and appellant fondled his sex organ. The boy estimated he was in the bedroom about ten minutes, after which appellant left the house and he (Morrow) went home. Although his mother was at home, the boy made no report of the occurrence to her, and continued to visit in the home of appellant from time to time, including the Sunday afternoon before appellant's arrest on Monday, June 18, 1951. Later admitting that he knew what had happened was wrong, Morrow did not at the time make to anyone a protest or report of appellant's alleged misconduct; to his father, who repeatedly asked him relative thereto, the boy denied any such fact and also denied the specific incident upon which this prosecution rests. He made no admission to the peace officers of the facts to which he testified, until, according to the testimony of the sheriff, about thirty days after appellant's arrest.

There is nothing in the record suggesting that appellant's arrest was predicated upon the instant accusation or upon any information given by the prosecuting witness Morrow.

It is upon the above facts, shown only by Morrow's testimony, that this conviction rests.

Witness Morrow is not corroborated as to any material fact. So far as this record is concerned, he was never seen in the home of appellant at any time by anyone.

It is insisted that Morrow was an accomplice witness as a matter of law and that, as there was no corroboration of his testimony, the facts are insufficient to support a conviction. In the alternative, it is insisted that if Morrow was not an accomplice witness as a matter of law the facts were sufficient to raise such relation as an issue for the jury's determination.

An 'accomplice,' as applied to evidence, means a person who, as principal, accomplice, or accessory, is connected with the crime by an unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether or not be was present and participated in the crime. Huntress v. State, 130 Tex.Cr.R. 492, 94 S.W.2d 752; 18 Tex.Jur., § 154, p. 252. A conviction cannot be had upon the uncorroborated testimony of an accomplice. Art. 718, C.C.P.

A determination of the questions presented calls for a construction of the so-called fondling statute and the relation of the witness to the offense charged, as shown by the testimony.

The fondling statute shows that the legislature was there creating, out of the general subject of offenses against morals, a new and independent offense touching conduct towards children under the age of fourteen years which the legislature found not to have been adequately covered by the then-existing statutes.

Two elements of the fondling statute appear as constituent elements of other crimes dealing with the general subject matter of offenses against morals--that is, the required lascivious intent is also an element of the sodomy statute, art. 524, P.C., as amended, Vernon's Ann.P.C. art. 524, while the fondling of a child's sexual parts is an act tending to 'debase or injure morals * * * of a child,' which is an element of 'delinquency' as defined in the statute which prohibits contributing to the delinquency of a child. Art. 534a, Vernon's P.C.

In determining the question of complicity as here presented, it becomes material to consult the decisions of this court upon that question in cases involving the crimes of sodomy, contributing to the delinquency of a child, and incest--all of which are listed in our penal code as offenses against morals.

The crime of incest makes carnal knowledge of one another unlawful for those persons who are by law prohibited from marrying. In such cases it has been the long and consistent holding of this court that where the female consents to the incestuous relation, she is an accomplice witness and her testimony must be corroborated. Authorities attesting the rule will be found collated under k 507(7), Criminal Law,...