
    SKEWIS v. STATE.
    (No. 8071.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.)
    1. Assault and battery &wkey;>83 — Error to permit testimony-of child as to indecent assault not a part of res gestae.
    In a prosecution for aggravated assault upon a child 6 years old, the court erred in permitting the state to prove that when the child told her aunt and mother of the occurrence she gave them details which were narrated from the witness stand by the hunt; such testimony not being a part of the res gestee.
    2. Assault and battery <&wkey;>92 — Evidence held insufficient to sustain conviction for aggravated assault.
    In a prosecution for aggravated assault upon a child, evidence held insufficient to sustain conviction, where two other children present when the assault occurred were not used as witnesses, nor their absence accounted for.
    Appeal from Harris County Court at Law, No. 2; Roy F. Campbell, Judge.
    Herbert Skewis was convicted of aggravated assault, and he appeals.
    Reversed.
    
      John W. Berry, and W. P. Castle, Asst. Or. Dist. Attys., both of Houston, and Tom Gar-rard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the county court at law, No. 2, of Harris county of an aggravated assault, and his punishment fixed at one year in the county jail.

We gather from the record that, according to the state’s contention, on the day in question three children went to where appellant was and that he took one of them, a girl 6 years of age, and placed her upon a pile of boxes and placed his privates between her legs and then put his tongue in her mouth. He then released her, and the children went away, and this particular .child reported the occurrence later to her mother and aunt. They returned to the place where appellant was at work and, according to the aunt’s testimony, accused him of tampering with the child, which he denied. It is also in testimony that he asked the child in the presence of the aunt and mother if he had done anything to her. He asserts that the child said he had not. The aunt testifies that the child told him that he had.

By bill of exceptions, complaint is made that the state was permitted to prove that when the child told her aunt and mother of the occurrence she gave them the details of same, and' those details were narrated from the witness stand by the aunt, upon this trial. In Douglas v. State, 73 Tex. Cr. R. 385, 165 S. W. 933, we held it erroneous to permit testimony of the detailed statements of an 8 year old child, not shown to be a part of the res gestae. Other authorities of similar import appear in subdivision 26, art. 1063, Vernon’s Pen. Code 1916.

As above stated, the aunt testified that she and the child’s mother went to see appellant, and that he denied any undue familiarity ^th the child, and called her to corroborate his story, but the child told him that he did do it. In support of the motion for new trial, based in part on newly discovered evidence, appellant presented the affidavit of a witness to the effect that he heard this conversation between the aunt and mother of the child and the accused, and he states that he heard the child say on that occasion that appellant did nothing to her. The evidence is unsatisfactory. It appears that two other children were present when it is claimed that appellant put his privates between the legs of the little girl. Their ages are not shown, nor are they used as witnesses, nor their absence accounted for.

The judgment should be reversed for these errors, and it is so ordered. 
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