*1 v. J. Miles State. 25,722. 12, 1952. March Denied Presiding. Newman, Judge Hon. A. O.

Senterfttt, Crump Jameson, Jameson, by & William San S. Saba, appellant. for

George Blackburn, Attorney, Austin, P. State’s for the state. GRAVES, Presiding handling

The conviction is for minor’s the indecent parts; punishment assessed confinement in state penitentiary years. for two alleged “in the in the indictment

County Texas, of Brown unlaw- there State of did then and fully, intent, with lascivious male then and of Artie a there working The facts in the case show in was night ques- in the town of Brownwood on the engaged

tion reading history, and was at such time a book on however, “pin duties, but at the instant time setter” working. alley in which he was no business there up, and asked came sat down close to the *2 reading, boy told After he had some and the him. what he was boy lewd, appellant which was rather conversation with the seeing go purpose two for the of out with him organ. boy women. He also asked the as to the size of his male frightened, just that that seems became and lights time the went off and left them Appellant the dark. reached hand his around and boy’s organ pants male inside the time. which was his his flesh did not touch the flesh of the grast organ hand did his male within his there- trousers. Soon after, again, whereupon came on left company appellant of work- and told the man for whom he was ing happened. what had

This case was submitted to the of cir- under the law evidence, cumstantial and it that is contended placed evidence is not sufficient to show upon against and part complaining of the witness. His although contention proposition that, boils down to the statement true, put is witness still never upon person child, testimony under only it can put upon be shown that he the trousers organ which covered boy. the male of this prosecution arose and was maintained Article under 535d, Code, portion Vernon’s applicable being Penal here “It shall unlawful for with lascivious intent intentionally to hands, place attempt or or her hand or any portion or upon of his or her hand or part sexual years, age (14) or female under the of fourteen any way or to in attempt or manner fondle or to fondle a part age of a male or (14) female under the of fourteen years, or attempt or her any part hands or of his hand or hands breast age female under the way fourteen or to in attempt manner fondle or female fondle the breast of a under (14) nothing

It will sug- be noticed that there is in the statute gesting only that the crime there denounced could be committed application of the bare hand of the accused bare to the guise court,

or naked sexual of the child. This statutory construction, cannot write into the statute that obviously contained ex- therein. The conclusion pressed, therefore, instant show a violation facts ap- the statute mentioned. This conclusion untenable renders pellant’s contention an only the facts here show attempt.

What we disposed have heretofore said Bills Nos. 3 and 5. Bill of 4No. is concerned to the with the jury relative appellant complained to whether or not this act of of was an intentional act. We have searched the record find nowhere therein offered un- relative to the intentional ap- boy’s body of this *3 pellant, merely touching. find a denial of such Bill No. 6 las- relates to the on civous intent necessarily with which this claimed offense must be committed. requested charge by relative to such intent was covered general charge

the instance, wherein, court’s paragraphs in two in each were told that before a conviction could be had, it complained must be shown that done act of was with a lascivious intent as that term defined in the case State, Slusser v. (2d) 155 Tex. Cr. R. S.W. argument Bill complains No. 7 district theory interpretation the defense of the Statute whereby they

correct guilty man contend that before can find a placing parts the sexual minor under fourteen then a man such as permitted J. Miles would youth to assault our and tear body girl the clothes from the of some little could before he come in contact with parts.” argument certain was invited and was in answer argument upon appellant’s attorney, shown as by itself, argument response the bill as “in defense charged counsel proven offense not has been State because there was no actual contact between hand of defendant and of the said Artie Fisher.” counsel, defense think We according own bill. to his judgment record,

Finding no error affirmed. will be REHEARING. MOTION FOR

ON MORRISON,

Appellant forcefully in error in our contends that we were original testi- opinion, found no wherein we said that we had genital portion touching mony as to an unintentional following boy’s body. directed of excerpt Our attention is appellant’s testimony: not, Artié “I did either the time I handed the back to at book time, put my anywhere about out, private. I handed book back to him and the went hap- stepped I and pened back to the back of the seat. It could have I touched that I the book back handed him, deny anywhere, or but I I hold of him part. touched make him about his sex I did any attempt place my anywhere person, or part.” his sex find that unintentional

We defense of finding charge. required was covered court’s The court charged intentionally done, the act was and then *4 as follows: you defendant, believe from the evidence that Miles, placed

J. years, Artie he if of 14 hand, through did you mistake, so an accident or acquit defendant, will or if have a reasonable doubt thereof, you guilty.” will find the defendant not interpreting

In question, statute we made an earnest guilty effort to delineate that conduct which would make one “placing one’s hands” from the conduct would make one guilty “attempting This, did do to one’s hands.” we demonstrates satisfaction. We think case at bar types Quoting both of conduct. from the region grabs grab

“A. attempts He made two me in the my private. “Q. grabbed penis your One time he when grabbed evidently pants’ your (which he when comb pocket) Yes, ? A. sir.” “placed grabbed penis,

The time the accused hands.” “attempted comb,

The time he the accused place his hands.”

This, given think, logical we was the construction to be wording of the statute. relating apparent, exception the bill of attorney, of the district counsel had

given question view of how statute in should interpreted. gave thereto, In answer the district consequences his views as to the would follow appellant’s interpretation prevail. if law should

Remaining properly disposed convinced that we cause originally, appellant’s rehearing motion for is overruled.

Arthur v. State. Sims 25,691. February 6, 1952. Granted