
    SINE v. STATE.
    (No. 5516.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1919.)
    1. Criminal law &wkey;369(13) — Evidence of EXTRANEOUS CRIMES.
    In a prosecution for aggravated assault, committed on a female child by fondling her person, evidence of similar offenses against other children is inadmissible, in the absence of circumstances bringing it within the exceptions to the rule excluding extraneous crimes.
    2. Criminal law <&wkey;365(l), 371(1) — Evidence ADMISSIBLE AS BES GESTEE; SHOWING INTENT.
    In a prosecution for aggravated assault on a female child by fondling her person, evidence that defendant had exhibited obscene pictures to prosecutrix at the time of the offense held admissible, as showing intent and as a part of the res gestae.
    3. Witnesses &wkey;>337(6) — Impeachment on immaterial issues.
    In prosecution for aggravated assault on a female child, who had testified that defendant at the time of the offense had exhibited obscene pictures to her, the state in laying the predicate to prove that defendant had on various occasions exhibited obscene pictures to other girls, and in contradicting his denial of such transactions, infringed the rule against impeachment on an immaterial issue.
    Appeal from Tarrant County Court; Hugh L. Small, Judge.
    B. O. Sine was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Mays & Mays, of Ft. Worth, for appellant.
   MORROW, J.

The appellant is under conviction for aggravated assault, and his punishment fixed at confinement in the county jail for two years. The assault was alleged to have been committed by appellant, an adult male, upon Pharaline Kennedy, a female child. The state’s case rests mainly upon the testimony of the injured party, a girl 9 years of age, who testified that appellant enticed her into his dwelling house and fondled her person. She also testified that at the same time he exhibited to her some obscene pictures. ,

The appellant’s entire testimony on direct examination was in substance that he was a married man, 48 years of age, that he had no children, that he had played with different children in the neighborhood in which he lived, but had no relations of any kind with the prosecuting witness, and made no assault upon her of any kind.' The state proved by another little girl, Mary Fields, that the appellant had on one occasion fondled her person; the facts disclosed by her showing, if true, that he was guilty of an aggravated assault. There are several bills of exception relating to this evidence, and in our opinion it should not have been admitted. It tended to prove a different and separate offense upon another person than that named in the indictment, at a different time, and there is no fact or circumstance disclosed which brings it within any of the exceptions to the rule which excludes extraneous crimes.

The state, by several witnesses, introduced testimony to the effect that' on various occasions, in no way connected with the one upon which the prosecution was founded, the appellant had exhibited to them obscene pictures. The state, on cross-examination of the appellant, laid a predicate for the introduction of this evidence, which predicate was laid over the objection of the appellant. No objection was made to the proof by the state that the appellant exhibited obscene pictures to the prosecutrix at the time of the alleged offense. An objection to this, we think, would not have been tenable for the reason it went to show intent and was a part of the res gestae; and doubtless, if the appellant had made an issue about it, it would have been permissible for the state to prove by circumstances or b'y direct testimony that at the time, or about the time, of the alleged offqnse, he was in possession of such obscene pictures.

We think, however, in laying the predicate to prove that on various occasions, remote from the time of the occurrence upon which the prosecution was founded, he exhibited obscene pictures to other girls, and in contradicting his denial of these transactions, the state was infringing the rule against impeachment of a witness upon an immaterial issue.

Because of the errors pointed out, a reversal of the judgment of the trial court is ordered, and the cause remanded. 
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