*1 378 11; State,
Tex.Cr.App., Thompson 473 v. S.W.2d Lewis 96 256 v. Tex.Cr.R. State, 89 State, Tex.Cr.R. 231 (1923); S.W. 113. 88 Tex. v. S.W. 279 Steen Where the issue of murder without mal- (1920). Cr.R. evidence, ice raised the fact that on its distinguished This case cannot be evidence also raises the issue of self- Ray, supra, predecessors its facts from granted defense and the accused is a re- to be majority that I cited. The seems quested instruction on the same does not overruling these cases sub silentio. deprive right the accused of his to an I dissent. instruction on murder without malice. State, Monroe v. Tex.Cr.App., 501 S.W.2d CLINTON, JJ., join in 639; State, Lewis v. 89 Tex.Cr.R. opinion. S.W. 113. Ray The evidence in showed that a result disagreement complainant attacked
the defendant which led defendant
fear for his held life. The Court that
issue assault with intent to murder with out malice was have raised. We reached PHILLIPS, Jr., Appellant, Joe the same cases conclusion in other in See, volved similar facts. e. Armentrout v. State, (Tex.Cr.App.1974); S.W.2d Texas, Appellee. The STATE (Tex.Cr. Monroe v. No. 56071. App.1973); Lewis v. 89 Tex.Cr.R. 345, 231 (1921). S.W. 113 Texas, Appeals Court Criminal testimony of Officer Johnson shows En Banc. appellant danger was in immediate Oct. losing his life at the a man hands of much larger than he. The clearly man en-
raged about his appellant. wife’s affair with
Anyone appellant’s position would have
been terrified for his face of life such
a ferocious and determined attack. Photo- taken
graphs after the attack multiple head,
show on his stab wounds
chest, and left say arm. To the evi-
dence does not raise the issue whether Elledge killed immedi- arising passion
ate influence sudden from terror, adequate cause, namely
an is to
wholly ignore the circumstances surround- Elledge’s death.
ing ignore It is also terms
express manslaugh- of the voluntary
ter statute. See Section 19.04 of the Penal
Code.
Appellant’s failure to that he was testify preclude
in fear for his life does not
charge manslaughter. on voluntary long ago held necessary that it is not passion
that the accused testify to the required offense, long establish the
as the facts in evidence raise issue. *2 Gauen, Robertson, Clifton, F. T.
Steve Jr., Dallas, appellant. for Atty., Gates-
Bobby Cummings, L. Dist. Austin, ville, Huttash, Atty., Robert State’s for the State. MOTION
OPINION ON STATE’S FOR REHEARING DAVIS, Judge. W. C. cause, of this original
On submission injury to a for the offense conviction for the reason that child was set aside аnd five years, one month child fourteen is “fourteen days not a child who old is by V.T. protected rehearing, 22.04. On C.A. Penal reconsideration asks our State do. we shall question. This sufficiency of the evidence Although the reveals that challenged, the record is not Indian charge Ranch, pre-delin- a home Springs Boys 12, 1976, September quent children. On two of using at least blasting ditch in rock to assist him in of them when one dynamite use consisting of bodily injury sustained serious loss eye, wrist, of an abrasions, hand and given age at the last moment of the and lacerations for which birth, he received preceding exten- not as a plastic sive surgery. At thе time of the period limitation on the of time one remains injury, the years, victim was fourteen one given age. at a month and five days old. 22.04, supra, protecting a child “14 *3 error,
In grounds two of con- years age younger,” only of or is the statute tends that the years age child was not 14 of in using the Penal Code this phraseolоgy. as contemplated Code, by V.T.C.A. Penal are, however, There ten in the Pe- statutes 22.04(a), Sec. passed since he had his four- nal “younger Code where the term than” a 22.04, teenth birthday, and that supra, Sec. age certain is Had the Legislature used.1 is vague constitutionally because the stan- only intended those protect to children un- of imposed dard care “is not and cannot be der years age, fourteen of it would have defined.” simple been a matter for them to have so provided by phrase the use of a “younger Code, V.T.C.A. Penal 22.04 Sec. reads as say Legislature than.” To deviat- follows: ed from the phrase “younger use of the “(a) person A commits an offense if he than_years age” of used in the other intentionally, knowingly, recklessly, 22.04, supra, statutes in Sec. to include or with negligence criminal engages people injured a class of who were only on in conduct that causes bodily serious their birthdаte does not make sense. Sec. injury . . . to a child who is 14 1.06 does interpreta- not lend itself to such years younger.” of or tion. It is important to note that 22.04(a) We hold that Sec. includes years or is protection in its all children who have not disjunctive, written in the thereby making attained birthday, their fifteenth and that quite obvious that the statute was intend protected. ed to victim in this case was thus protect groups two distinct of chil dren: those who are years fourteen ground error, In appel his second and those who are under fourteen. lant contends that Sec. 22.04 unconstitu tionally vague
The contends and because the stаndard of care the Pan original imposed not, el on submission a defendant held the and can “14 years age” Appellant goes to mean one not be defined. who has further 22.04, reached his birthday, fourteenth claim that under the but that terms of Sec. thereafter he was supra, over fourteen he “cannоt determine what acts or though even he had not reached his omissions are to refrained from be or what fifteenth birthday. interpretation person duty acts a has a to do.” the statute limits the pro duration of the provid- indictment the instant case tection year afforded to fourteen olds to a еd, eliminating parts, the formal period day of one authority or less. As for appellant, day September, on the 12th conclusion, opinion the Panel cited V.T. 1.06, Code, C.A. Penal provides which Sec. “did then negli- and there with criminal as follows: conduct, gence engage in to wit: allow- “A person specified age attains a on the ing boys supervision dy- under his to use of the of his birthdate.” blasting namite for rocks a ditch at
This statute was obviously Ranch, an intent on Springs Boys Indian that caused part Legislature to abolish the Jordan, bodily injury Lacy serious a old common law person rule that a age.” attains a child 14 8.07, Affecting Custоdy; Age 1. See Penal Code Interference with Sec. Child Sec. 25.05 Sale, Responsibility; Criminal Non-Support; Sec. 9.61 Parent- Criminal Distribution, and Sec. 43.24 Child; Kidnapping; Rape Display Sec. 20.01 Sec. 21.09 of Harmful Material to Child; Child; Sec. 21.10 Sexual Abuse of a Minor. Child; Indecency Sec. 21.11 with a 25.03 Sec. In Nabors S.W.2d provides culpable four chal defendant prosecution may (Tex.Cr.App.1974), mental states on which un of a statute constitutionality an offense if he person lenged “A commits rest: was similar recklessly, or with which intentionally, knowingly, the old Penal Code der Code, omission, en- negligence, by act or present criminal V.T.C.A. However, provided gages in conduct . . that statute 22.04. child: injury to a prosecution defense to Appellant charged in this case was with was done complained the act “[i]f negligence which is criminal defined V.T. right of moderate the exercise 6.03 as follows: C.A. to the given law restraint or correction “(d) negli- A acts with criminal ”. child . ovеr the parent gence, negligent, or is with criminally this statute respect surrounding to circumstances his claimed The defendant as- lacking in conduct or the result of his conduct when it is “vague because *4 ought he to be aware of that a a substantial and standards certainable unjustifiable risk the notice given cirсumstances not fair intelligence is ordinary exist or the result will occur. The risk forbid- conduct is contemplated that his degree must be of such a nature and portion this holding that den.” In perceive unconstitutional, the failure to it constitutes a quoted we statute was not gross deviation from the standard of carе Tex.Jur.2d, p. 43: Sec. ordinary person
that an
would exercise
could not
obviously
“The
and
law has not
under all the circumstances as viewed
modera-
any fixed measure
lay claim
actor’s standpoint.”
from the
Whether
a child.
correction of
tion in the
Appellant’s
was
contention that this statute is
cоrrection
particular case the
any
in
unconstitutionally vague
necessarily
for its failure to
must
moderate or excessive
define the standard of care is
sex,
without mer-
and
condition
depend on the
it.
child,
the
and on all
disposition
determined
to be
attending circumstances
Wingate
(Tex.
In
instant cause are reformed to reflect than 15 yеars.” appellant was found guilty “Injury to a To the majority’s erroneous construction Child,” rather than “Criminal Negligence.” 22.04, respectfully I dissent.
The State’s Motion for Rehearing is granted, judgment and the is affirmed. PHILLIPS, JJ., and join
opinion. ODOM, Judge dissenting. CLINTON, Judge, dissenting. I dissent to majority’s disposition of I particular- also While I do not dissent. appеllant’s ground second of error. The ly disagree expressed with views majority erroneously construe phrase his Judge dissenting opinion, Odom rath- in Sec. er than squabble enter into the about the Code, V.T.C.A. Penal to refer to “two dis- meaning applicability of V.T.C.A. Penal tinct groups of children.” The result is that Legisla- Section 1.061 and what the equivalent held to be scope not, ture could have said but did to the “younger years.” than 15 enough for me that before there was a The majority opinion does point out that guiding statute relative to mistreatment of the Penal Code in at least ten instances males this Court held that the word “child” does use the terminology “younger than” applied “only under the of 14”2 See, age. certain provisions e. *5 and, Legislature when the did address the listed in majority opinion. footnote 1 of the subject, agreement, it indicated albeit sound, To proposition borrow a is al- obliquely.3 though misapplied by majority: the Hаd Legislature protect intended to all chil- perplexity nagging majority— dren under fifteen of singular phraseology would of Section 22.04— simple have been a matter for them to by application have is resolved the result first provided by the use of of the acceptation common rule to this “younger than.” The fact problem State, that such lan- 18 Tex.App. Bell 53 v. guage was not used in (1885). justification But technical the best coupled with the fact that such language that, is for it is every statutory provi unlike used as a of terminology standard form sion cited in note 1 of the majority opinion, Act, provisions numerous other genesis same 22.04 is not the 1970 strong legislative proposed evidence of intent that revision of the Penal Code.4 Thus meaning 1148a, 1925, has a amended, Article Penal Code as 1147, really just changes 1. Section 1.06 3. one Article Penal Code 1925 made an as person when, battery aggravated the common law rule that а attains a sault or in subdivi given age day pre- (9), at the first moment of the sion it was committed an adult male ceding birth, 832; “child,” provided 86 C.J.S. and then rule, apparently early approved in Ross v. apply that the subdivision “shall not to the act Morrow, 172, (1892) 85 Tex. and person who fondles . the sexual Thompson, thereafter reaffirmed in Pate v. 179 parts of a male . . . under 1944, (Tex.Civ.App. S.W.2d 355 writ (14) years fourteen —Waco . .” See Article refused), applies still in the civil law of this 535d, Daywood Penal Code 1925 and v. (All emphasis supplied throughout by State. (Tex.Cr. 157 Tex.Cr.R. opinion the writer of this unless otherwise indi- App.1952). cated.) Revision, Proposed 4. See Texas Penаl A 2. Wilman v. 63 141 Tex.Cr.R. S.W. Co., Draft, Publishing Final West October (Tex.Cr.App.1911): “The authorities shows, disposition St. Paul. As the table at in this state hold that the word ‘child’ under 1148a, time Penal Code Article statute, assault, our aggravated in reference to amended, did not exist. applies only under the of 14. . (citing going [McGregor authorities back to Statе,] 599).” Tex.App. origins,5 was not obviously independent Larry SANDERS. parte for con- James
subjected thorough examination Ex proposed penal revised code sistency with No. scant attention in the same received Texas, Appeals of Criminal Legislature.6 session of the Banc. En maturity times earlier of chil- In these 24, 1979. Oct. most, dren, perceive at least as seen I no impelling Legislature policy reason depart
1971 or 1973 to from the settled
understanding meaning of “child” as And,
a victim of violence or sexual abuse. my judgment, it did not.
Accordingly, I dissent. PHILLIPS, JJ., join. *6 years. As thus re Actually years age maximum of five for a or analyzed purposes originate did not in the 1973 Penal viewed and the essential 445, them, regard appeared Code revision. committee It first in a House were to Bill as I see Senate aggra any Bill 445 that amendment to Senate as a victim child like other Leg., however, special was enacted as 62nd ch. retaining, Acts vated assault— 1148a, 1 and was Article Penal § codified as child of sеxual abuse of a for cases distinction Initially, and as Code 1925. as introduced provide of fourteen —but Senate, passed by proscribed the bill inten- protection more serious as- from the additional definition; battering tional the House that inserted of a child—without inflicting physical serious offense saultive injury аdopted a committee amendment days child, rather than to add on a places following in two application age of a “child.” the settled “child,” thusly: the word years child who is 14 “a supported my connection view seems In this younger,” Journal 1971 House following Commentary by § the Practice amendment, 3481; the Sеnate in the concurred which states: 1971 Senate 2 of the Journal 1326. Section 1148a, prior en restores Article “The section (9) same bill of Article amended subdivision substantially increases the acted penalty but 1147, supra, aggravated assault to to limit an that former offense. “by one person committed an аdult male * * * by the courts was defined ‘Child’ female,” thereby deleting spe- young younger female than 14 and as a male category aggrava- cial ted result was that a anyone of “child” as a victim of Tex. e. Wilman v. [63 than er assault, except fondling as to etc. 623,] (Cr.App.1911). Sec Cr.R. regular aggravated assault on bоth 22.04 standardizes the deñnition tion prescribed committed other means at 14 . sexes by provisions punishable was of Article 1925—a maximum of two Code Revision, in Introduction to 6. As noted and a thousand dollar fine— confinement whereas an assault that constituted intro the draft that Texas Penal child bat- by either acted on 1971 “was not duced in newly tering, Article as denounced enacted house,” vii. Code V.T.C.A. 1148a, punishable confinement