Opinion
No. 27797.
November 16, 1955.
Appeal from the District Court, Potter County, E. E. Jordan, J.
McCarthy, Rose Haynes, by George S. McCarthy, Amarillo, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is a conviction for indecent exposure to a child; the punishment, four years in the penitentiary.
According to the testimony of the prosecutrix, a twelve-year-old girl, as she and her girl companion passed along the sidewalk appellant, seated in an automobile, exhibited and exposed to them his male organ while holding it in his hand. Previously thereto, he had attempted, by motioning to them, to get the girls to come to the car in which he was seated.
We entertain no doubt as to the sufficiency of the evidence to support the conviction.
The appellant did not testify, nor did he offer any affirmative defense.
Over appellant's objection, the state was permitted to prove by the mother of the prosecutrix that when she (the mother) arrived home in something like an hour after the alleged exposure the prosecutrix said to her, 'Mother, a man tried to pick us up.'
The state offered the testimony as and in the nature of an outcry.
Note is taken of the fact that the prosecutrix was permitted to testify, without objection, as follows:
"I called the police and told them a man tried to pick us up, and I described him, and told what the car license was."
It appears that proof of the same fact to which appellant was objecting had been introduced without objection from another source, rendering the objection without merit. Moreover, what the prosecutrix told her mother did not tend to show appellant guilty of the offense charged. Prosecutrix did not say, in that connection, that he exposed his person to her, which was the offense and only offense for which he was upon trial.
We are unable to reach the conclusion that reversible error is reflected.
The judgment is affirmed.