
    DE LA O v. STATE.
    (No. 7625.)
    (Court of Criminal Appeals of Texas.
    April 11, 1923.)
    1. Indictment and information <§=>191 (8) — Infants <§=^68 — Aggravated assault was properly submitted in prosecution of one as a delinquent child) charged with rape.
    Under Code Cr. Proc. § 1197, declaring one a delinquent child who violates any of the penal laws, the issue of aggravated assault was pr.operly submitted under an indictment against one as a delinquent child charging him with rape and assault to rape, as the offense of 'rape includes aggravated assault. »
    2. Indictment and information <§=>132(3) — Election between counts in prosecution of delinquent child heid unnecessary.'
    Where it was sought to convict defendant as a delinquent child violating penal laws under a. complaint charging in' one count rape and in the other an assault to rape, the object being to determine whether defendant should be confined as a juvenile, the court properly declined to require the state to elect on which count it would seek conviction.
    3. Criminal law @=>1173(3) — Refusal to instruct that defendant could not be found guilty as charged in both counts heid not injurious where he was found guilty under one.
    Where it was sought to convict defendant as a delinquent child under an information containing a count for rape and another for assault to rape, refusal to instruct that the jury could not find him guilty of delinquency as charged in both counts was not injurious where the verdict found him guilty under the second count.
    4. Infants @=>69 — Instruction held not to authorize detention for delinquency for greater period than five years.
    Where defendant, charged with being a delinquent child, was 16 or 17 years old, an instruction that, if guilty, the jury would assess his punishment at confinement in the industrial school for an indeterminate period, not to extend beyond his majority, was not objectionable as authorizing punishment not provided by law, as it did not authorize detention for greater period than five years.
    5.. Infants @=¾68 — -Evidence held to sustain instruction as to delinquency.
    In a prosecution of defendant as a delinquent child for having committed a rape, or assault with intent to rape, an instruction on the elements of aggravated assault, telling the jury that, when the acts constituting aggravated assault and battery are committed by a male person under 17 years of age, he would be a delinquent, held sustained by evidence that defendant made either a sexual assault on a little girl, or an assault upon her with some instrument.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Martin de la O was convicted of being a delinquent child, and appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTTMORE, J.

Appellant was convicted of being a delinquent child, and by the verdict of the jury sent to the State Industrial School for Boys until the time he arrives at the age of 21 years.

There was some little dispute over the question as to whether appellant was 16 or 17 years of age at the time of the commission of this offense, but, in view of the fact that he was adjudged guilty as a juvenile, we forbear discussion of the matter.

A complaint was filed against appellant charging in one count rape and in the other an assault to rape, and it was further alleged that he was under the age of 17 years at the time. Under the provisions of our Code of Criminal Procedure the offense of rape includes the lesser offense of aggravated assault. The latter offense was submitted to the jury in the court’s charge, and it appears from their verdict that they concluded that appellant was guilty of an aggravated assault. There was no error in submitting to the jury the law of said offense of which he was found guilty. Article 1197 of our Code of Criminal Prosedure by its terms states that one is a delinquent child who is found guilty of violating any of the penal laws of this state. By the verdict of the jury in this case appellant was found guilty of violating our law against aggravated assault, and the jury, having reached said conclusion, were justified in finding him guilty as a juvenile.

The facts are unsavory. Appellant was a Mexican boy about 16 or 17 years of age, and claimed by his relatives to have been injured at some time in the past so as to affect his mentality. On the day of the occurrence a little Mexican girl 4 or 5 years old was unquestionably assaulted. She was crying, and her private parts were bleeding. Appellant made a confession, in which he admitted his criminal connection with said child.

We do not think the trial court erred in declining to require the state to elect upon which count in the information it would ask a conviction. The state was merely seeking to ascertain the guilt of appellant in order to determine whether he should be confined as a juvenile, and, having charged in its information different phases of the offense in order to meet the evidence as it might be developed upon the trial, and a finding of guilt under either count in the information leading but to confinement of the accused in the Industrial School as a juvenile, we do not think it error for the trial court to decline to require the state to elect. The appellant requested the court to instruct the jury that they could not find him guilty of being a delinquent child as charged in both counts of the information. This was refused, but the verdict found appellant guilty of being a delinquent child under the second count, and we see no injury resulting from the matter.

Complaint is also made by a bill of exceptions of the trial court instructing the jury that, if they found appellant guilty under either count of the information, they would assess his punishment at confinement in the State Industrial School for an indeterminate period, not to extend beyond the time when he arrives at the age of, 21 years. Appellant insists this authorized the jury to inflict a punishment not provided by law. As stated by us above, the testimony was in some confusion as to whether appellant was 16 or whether he had reached the age of 17. In his own confession he stated he was 17 years of age, but from other testimony it is made to appear that he was 16. Inasmuch as the verdict of the jury in either case did not inflict upon appellant a punishment for a greater period of years than five, we would not deem the complaint of the charge in question to be of any materiality.

Appellant also seems to have objected to the court’s charge in that, after informing the jury of the elements of an aggravated assault, the court further told them that, when the acts constituting an aggravated assault and battery are committed by a male person under 17 years of age, then such male person would be a delinquent child. We perceive no error in the charge in question.

The evidence amply supports one of two theories: That of an assault upon a little child by appellant in an effort to gratify sexual appetite; or that of an assault upon her with some instrument. The child said that appellant stuck a stick in her. It was not shown that she understood, nor did she attempt to describe the stick or give the details further than that she was crying and bloody, and said that some other boy held her and he stuck a stick in her. In his confession, as above stated, appellant admitted that he assaulted her and had intercourse with her. It would be immaterial of which phase of the offense the jury found him guilty, for either would be a violation of the law, and a conviction as a juvenile under either would result in his incarceration in the State Industrial School for Boys.

Finding no error in the record, the judgment of the trial court will be affirmed. 
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