De Luca v. State

DAVIDSON, Judge. The offense is aggravated assault; the punishment, a fine of $500.00 and. one year in jail. The prosecuting witness was an eleven-year-old female. Notwithstanding such fact, the State elected to prosecute appellant, under allegations of the information, charging an assault by an adult male upon the person of a child. Art. 1147, sec. 5, P. C. The sufficiency of the evidence to support the conviction is' the sole question presented for review. The State’s case showed that the assault was committed by appellant, an adult male, by the indecent fondling of the privates of the prosecutrix. It has long been the established rule of law that the indecent familiarity of the person of a female by an adult male is an aggravated assault. Breeding v. State, 175 S. W. (2d) 253. Is such the rule, where the person assaulted is a child, without reference to sex? We held in Holmes v. State, 99 Tex. Cr. R. 270, 298, 269 S. W. 95, 96, that the indecent familiarity of the privates of an eleven-year-old boy constituted an assault. The judgment of the trial court is affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.