O'Neal v. State
| Decision Date | 21 June 1967 |
| Docket Number | No. 40414,40414 |
| Citation | 421 S.W.2d 391 |
| Parties | Milton O'NEAL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
Thomas D. Blackwell, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is enticing a male child under the age of fourteen (14) years to enter a house for the purpose of proposing an act which constitutes the offense of sodomy as denounced by Article 535b, Vernon's Ann.P.C.; the punishment is 10 years.
The complainant, J.E.C., testified that he was 11 years old in July 1964, when he first met appellant at the house of a school mate, that appellant took his friend and him water skiing and that later in that month he met appellant at a park where they were playing football and after the game appellant asked him and two of his friends to come to his house and spend the night. He stated that he alone went, that he and appellant first attended a movie and from there went to appellant's home where they both undressed down to their underwear and watched television. He stated that after a time appellant pulled off his underwear and pulled the complainant's underwear down to his knees, put complainant's hand on 'his dick and told me to jack him off and then he started jacking me off.' Complainant stated that he did not masturbate appellant, but that appellant 'rolled me over and he got on top of me,' put his penis between complainant's thighs and 'started moving up and down,' and thereafter asked him, 'Do you want to suck to make it really feel good?' and when complainant answered in the negative, appellant desisted, saying, 'I guess I rushed you a little too much.' Complainant spent the remainder of the night and the next day in appellant's company and made no complaint to anyone about the incident until the police interrogated him in February 1966.
H. F., one of the complainant's 15-year-old friends, testified that on the night in question he and some other boys went to appellant's home and that he climbed a tree in order to see if anyone was awake and saw appellant and complainant lying on a bed in a partially lit room, that complainant's underwear was down to his knees and appellant's head was near complainant's mid-section and appellant had one hand on his own private parts.
The appellant did not testify or offer any evidence on the trial of guilt or innocence.
The record reveals that the appellant's application to take the oral depositions of the complaining party and two peace officers was granted by the trial judge on March 21, 1966, and that the trial began on May 9, 1966.
Over appellant's strenuous objection, the prosecution was permitted to present testimony from two other boys showing that appellant had at other times and while alone with them committed similar acts upon them. The court charged the jury that such evidence was admitted for the purpose of showing identity, intent, motive, malice and common plan or scheme, if it did.
Appellant relies upon the general rule that evidence of extraneous offenses is not admissible for the reason that an accused is entitled to be tried only for the offense alleged in the indictment unless such offenses come within the exceptions to the general rule; and he further contends that none of the exceptions are applicable to the evidence in this case.
The indictment, omitting the formal parts, alleges that the appellant on or about July 20, 1965, 'did then and there unlawfully With lascivious intent entice, allure, persuade and invite J.E.C., a male child under fourteen (14) years of age, to enter a house For the purpose of proposing an act which constitutes the offense of sodomy.'
Art. 535b, Section 1, V.A.P.C., reads:
'It shall be unlawful for any person With lascivious intent to entice, allure, persuade, or invite, or attempt to entice, allure, persuade or invite, any child under fourteen (14) years of age to enter any vehicle, room, house, office or other place For the purpose of proposing to such child the performance of an act of sexual intercourse or an act which constitutes the offense of sodomy * * *.'
Art. 21.05, Vernon's Ann.C.C.P., provides:
'Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; * * *.'
The meaning of the word 'lascivious' as defined in the opinion in Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, a sodomy case, is deemed applicable in the instant case. There this court said:
'The words 'lewd' and 'lascivious' are not defined in the statutes and must therefore be given their ordinary meaning to be arrived at in part by a determination of the legislative intent in the use of the words in the particular statute.
'As so determined, the term 'lewd or lascivious manner' means in a vulgar manner inciting sexual desire or appetite, and connotes lust, indecency and sexual indulgence. The words 'lewd' and .'
At the close of the state's case in chief, the appellant presented his motion requesting the court to instruct the jury to find him not guilty for the following reasons:
'In a case of this nature if the evidence shows that the complaining witness is an accomplice, or if the evidence has raised that he is an accomplice, then it becomes necessary to have his testimony corroborated;
'The evidence is clear in this case without going into it that the witness continued to do this when other people had been present and it was not necessary for him to do so without his consenting, and under the decisions in this State, he would therefore be an accomplice witness, whether in fact a principal in the crime or not, and the necessity of corroboration arises;
'The law in this case is clear that the showing of an opportunity to commit the offense is insufficient to corroborate accomplice testimony;
'Therefore, we move for an instructed verdict of not guilty, Your Honor, on the grounds that the State's primary testimony was made by an accomplice witness, and that the attempt at corroborating such testimony failed in that it showed only the opportunity to have committed the offense.'
To the action of the court in refusing his motion for an instructed verdict of not guilty, the appellant excepted.
In accordance with the principles of law pertaining to the testimony of the complaining witness and his corroboration, the court charged the jury upon the law applicable to accomplice testimony and its corroboration:
'A conviction cannot be had upon the testimony of an accomplice unless the jury first believe that the accomplice's evidence is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.
'If you find from the evidence that the witness, J$ $ E$ $ C$ $, was an accomplice, or you have a reasonable doubt thereof, as that term has been defined to you in the foregoing instructions, then you are instructed that if you find beyond a reasonable doubt that an offense was committed, you cannot find the defendant, Milton O'Neal, guilty upon the testimony of J$ $ E$ $ C$ $ unless you first believe the testimony of the said J$ $ E$ $ C$ $ is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in this case, outside the evidence of said J$ $ E$ $ C$ $, tending to connect the defendant with the commission of the offense charged in the indictment and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.'
In considering the credibility of an accomplice witness this court in Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269, said:
'An accomplice witness is a discredited witness because his testimony alone cannot furnish the basis for a conviction.'
It is insisted that the issue of lascivious intent had been clearly proved before the offer of testimony pertaining to extraneous offenses; that once the act was proved to have been committed, the appropriate and necessary intent will be presumed if the appellant does not raise some defensive theory.
The appellant moved for an instructed verdict of not guilty at the close of the state's case in chief, on the grounds that the state's primary testimony was given by an accomplice witness, and that the attempt at corroborating such testimony failed in that it...
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