
    HOLMES v. STATE.
    (No. 8350.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.)
    1. Assault and battery <§=354 — Indecent familiarity held aggravated assault.
    Defendant’s alleged indecent familiarity with boy 11 years old held an aggravated assault.
    2. Criminal law <§=3507(I) — Child between 9 -and 13 may be an accomplice.
    Child between 9 and 13 may be an accomplice to criminal enterprise, depending on facts in each case.
    3. Criminal law <§=3742(2) — Question whether boy of 11 was “accomplice,” held for jury.
    In prosecution for indecent familiarity and conduct with boy of li, amounting to aggravated assault, refusal to submit to jury question whether boy was accomplice, that is, one who voluntarily participated with knowledge and intent in criminal act, held error under evidence.
    
      Appeal from Maverick County Court; Wm. Bonnet, Judge.
    J. Patrick Holmes was convicted of - aggravated assault, and he appeals.
    Reversed and remanded.
    See, also, 269 S. W. 96.
    Old & Smith, of Uvalde, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Maverick county of an aggravated assault, and his punishment fixed at two years in the county jail and a fine of $1,000.

We discuss but one question raised on appeal. Appellant" was charged with an assault upon a boy 11 years old, the substance of the charge being that the accused was guilty of such indecent familiarity and conduct with said boy as to amount to an aggravated assault. The details of the indictment are not necessary to set out. The boy testified that he went to appellant’s room, upon the latter’s request, and found him in his underclothes. He also says that appellant removed witness’ clothes from him, and placed him on a bed, and got on him and moved up and down, remaining in this position for a little while, and that when he concluded there was a soiled place on the boy’s limbs. There is no question in our minds under these facts that, if legally established, the case charged would be made out. The boy was 10 or 11 years old, a member of the church, an attendant regularly at Sunday school, in the sixth grade in the public schools, well trained, and showed himself to be fully' conscious of the difference between right and wrong. He said he did not tell any one of the occurrence' because he was ashamed. No resistance on the part of the boy is evidenced by the record. No remonstrance on his part appears except that at some time during the conduct of appellant, the boy testifies that he said to appellant, “Out it out.”

We have been given much trouble in determining whether or not this makes such a case as to call upon the trial court to submit the law of accomplice testimony. ’ The holdings of our own court on the proposition of fact here'involved are meager and somewhat confusing. The holdings of other courts of last resort do not se.em to us to be satisfactory. We are not in accord with the proposition that, in the absence of statutory pronouncement,- the court should arbitrarily say that a child between the ages of 9 and IS years was ipso facto unable to be an accomplice. From our reasoning and observation it would seem that an inference in the opposite direction would be more nearly correct. Boys and girls 10, 11 and 12 years old are quite capable of embarking in criminal enterprises, and might be shown to have full knowledge and full understanding of the criminality of • various acts denominated crimes. Our own opinion is that the better rule would be that each case should be determined by its own facts, and that, when in doubt as to whether the boy or girl involved was an accomplice, that is, one who voluntarily participates with knowledge and intent in the criminal act, the better rule would be for the court trying the case to submit the issue to the jury. Such we believe to be the course which should have governed the trial court in the instant case. The court below was asked by special charges to inform the jury that the boy was an accomplice, and also asked to submit to them the question by special charge as to whether they believed him to be an accomplice under the facts. All these charges the learned trial judge refused tb give. In our opinion, in refusing to submit the question as to whether the boy. was an accomplice to the jury for their determination, the learned trial judge fell into error for which the case should be reversed.

The judgment is reversed and the cause remanded. 
      <E=»ITor otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     