De La O v. State

• Decision Date: 11 April 1923
• Docket Number: (No. 7625.)
• Citation: 250 S.W. 182
• Parties: DE LA O v. STATE.
• Court: Texas Court of Criminal Appeals

250 S.W. 182

DE LA O v. STATE.

(No. 7625.)

Court of Criminal Appeals of Texas.

April 11, 1923.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Martin de la O was convicted of being a delinquent child, and appeals. Affirmed.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of being a delinquent child, and by the verdict of the jury sent to the State Industrial School for Boys until the time he arrives at the age of 21 years.

There was some little dispute over the question as to whether appellant was 16 or 17 years of age at the time of the commission of this offense, but, in view of the fact that he was adjudged guilty as a juvenile, we forbear discussion of the matter.

A complaint was filed against appellant charging in one count rape and in the other an assault to rape, and it was further alleged that he was under the age of 17 years at the time. Under the provisions of our Code of Criminal Procedure the offense of rape includes the lesser offense of aggravated assault. The latter offense was submitted to the jury in the court's charge, and it appears from their verdict that they concluded that appellant was guilty of an aggravated assault. There was no error in submitting to the jury the law of said offense of which he was found guilty. Article 1197 of our Code of Criminal Prosedure by its terms states that one is a delinquent child who is found guilty of violating any of the penal laws of this state. By the verdict of the jury in this case appellant was found guilty of violating our law against aggravated assault, and the jury, having reached said conclusion, were justified in finding him guilty as a juvenile.

The facts are unsavory. Appellant was a Mexican boy about 16 or 17 years of age, and claimed by his relatives to have been injured at some time in the past so as to affect his mentality. On the day of the occurrence a little Mexican girl 4 or 5 years old was unquestionably assaulted. She was crying, and her private parts were bleeding. Appellant made a confession, in which he admitted his criminal connection with said child.

We do not think the trial court erred in declining to require the state to elect upon which count in the information it would ask a conviction. The state was merely seeking to ascertain the guilt of appellant in order to determine whether he should be confined as a juvenile, and, having charged in its information different phases of the offense in order to meet the evidence as it might be developed upon the trial, and a finding of guilt under either count in the information leading but to confinement of...