Summary
concluding that court's comment on the weight of the evidence of nine-year-old girl for whose aggravated assault accused was being prosecuted was error
Summary of this case from Simon v. StateOpinion
No. 22767.
Delivered February 16, 1944.
1. — Assignments of Error.
The Court of Criminal Appeals, under the rules, is not concerned with assignments of error but with question presented by the bill of exceptions itself.
2. — Evidence — Other Offenses.
Where a party is on trial for a criminal offense it is not permissible to introduce before the jury evidence of disconnected crimes, immoral conduct and general reputation of accused which would show him to be a bad character generally, but only such matters as may enlighten the jury on the questions before them should be admitted.
3. — Aggravated Assault — Evidence — Other Offenses.
In prosecution for aggravated assault on nine year old girl by fondling her person, admission of girl's testimony that accused had on several occasions, prior to the offense charged, exposed himself and engaged in conduct in her presence which showed him to be a moral pervert was error.
4. — Trial Court's Comment — Evidence.
Trial court's comment in the presence of the jury, which constituted a comment on the weight of the evidence of nine year old girl, for the fondling of whose person accused was being tried, was error.
Appeal from County Court of Nueces County. Hon. Joe D. Browning, Judge.
Appeal from conviction for making an unlawful aggravated assault upon a nine-year-old girl; penalty, fine of $1,000 and confinement in county jail for two years.
Reversed and remanded.
The opinion states the case.
Roy A. Scott, of Corpus Christi for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Appellant was assessed a fine of One Thousand Dollars and two years in county jail from which he appeals.
He was charged by complaint with making an unlawful, aggravated assault on Joan Howell, a girl nine years of age. It will not be necessary to state the facts of the case in order to dispose of the questions involved other than that State's evidence showed that he fondled the person of this child in a manner sufficient to support a conviction. After the appellant had rested his case, the State recalled the prosecuting witness and developed from her that the appellant had on several occasions prior thereto, exposed himself and engaged in conduct in her presence which showed him to be a moral pervert. This evidence went before the jury over objections and in so admitting this testimony the court committed error.
Appellant has presented quite a lengthy brief on this subject in which he has assigned a number of errors. We are not discussing these assignments because this court, under the rules, is not concerned with assignments of error, but with the question presented by the bill of exceptions itself. Counsel may simplify his own work and aid this court materially by discussing the bills as they are found in the record, without the burdensome formalities frequently found in such briefs.
It is sufficient to say that when a party is on trial for an offense it is not permissible to introduce before the jury evidence of disconnected crimes, immoral conduct and general reputation of the party which would show him to be a bad character generally. Only such matters as may enlighten the jury on the questions before them should be admitted. The immediate question was specifically treated by this court in Kennedy v. State, 152 S.W.2d 772. See also White v. State, 131 S.W.2d 968 for the distinguishment to be made between that which is admissible and that which is not.
Bill of Exception No. Three brings forward a remark by the court in the presence of the jury which constitutes a comment on the weight of the evidence of the witness, John Howell. This comment was an error which could hardly be removed from the jury's mind by the apology given to them by the court. However, it will probably not occur on the trial of another case and for that reason is not treated.
For the error pointed out, the judgment of the trial court is reversed and the cause remanded.