
    EDELEN v. STATE.
    (No. 10032.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Criminal law &wkey;>823(l5) — Refusal of charge on reasonable doubt held .not error, in view of court’s main charge.
    Refusal of charge to acquit unless jury found beyond reasonable doubt that defendant committed offense held not error, court’s main charge to acquit unless each of named requisites of offense were established beyond reasonable doubt correctly submitting same point as favorably to defendant as charge requested.
    2. Rape <&wkey;57(5) — Charge to acquit unless guilty of aggravated assault was properly refused, where instructions and evidence justified finding of assault to rape.
    Where instructions and evidence justified finding of assault with intent to rape, charge to acquit unless defendant was guilty of aggravated assault beyond reasonable doubt was properly refused.
    3. Criminal law <&wkey;329 (3) — Instruction on what jury must find to convict of assault to commit rape held fuller than and as favorable to defendant as refused charge.
    Court’s main charge that jury must find beyond reasonable doubt, before they could convict of assault with intent to commit rape, that assault was committed with intent to have carnal knowledge of prosecutrix, and that carnal knowledge meant penetration of her sexual organ by his sexual organ, submitted more fully and as favorably to defendant refused request to charge that such assault could not be committed unless accused unlawfully assaulted her with intent to penetrate her organ with his.
    4. Witnesses <£=»40(2).
    Admission of testimony of seven year old girl is within sound discretion of trial court.
    5. Criminal law <&wkey;l09l (3) — Bill of exception to questions, objected to as involving unwarranted assumption, held insufficient as not reciting that grounds of objection were true.
    Bill of exception complaining of question to prosecutrix’s father, in trial for assault to rape, as to whether he recalled circumstances of her making complaint, held insufficient as not reciting that grounds, stated as basis of objection that question involved unwarranted assumption, were true, and that evidence showed that no complaint was made.
    6. Criminal law <&wkey;l09l(2).
    Truth of objection to question must-be verified by bill of exception.
    7. Criminal law <&wkey;>!092(l4).
    Mere statement of ground of objection is not certificate of court that facts forming basis of objection are true.
    8. Criminal law &wkey;>l09l(4) — Bill of exception to admission of testimony that accused’s breath smelled of liquor after assault held insufficient as not showing length of time since assault.
    Bill of exception to admission of testimony that accused’s breath smelled of liquor some time after alleged assault held insufficient, as not showing length of time since assault.
    9. Rape <&wkey;48(l) — Evidence of prosecutrix’s complaints to mother and another and her physical condition at time held admissible.
    In prosecution for assault with intent to commit rape, evidence of prosecutrix’s complaints to her mother and another and of her physical condition at time held admissible on-question whether she was assaulted.
    Commissioners’ Decision.
    Appeal from District Court, Potter County t Henry S. Bishop, Judge.
    J. M. Edelen-was convicted of assault with intent to commit rape, and he appeals.
    Affirmed.
    Reeder & Reeder, of Amarillo, for appellant.-
    Sam D. Stinson, State’s Atty., of Austin,, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BERRY, J.

The offense is assault; with intent to commit rape, and the punishment is five years in the penitentiary.

The state’s testimony shows that appellant,, a man of mature years, took the prosecutrix, a girl seven years of age, into his house, and; after subjecting her to indignities practiced only by moral perverts endeavored to have intercourse with her. Appellant, on the other hand, testified that the transaction did not. happen as related by prosecutrix, and claimed that she was an innocent visitor at his house, and that he did nothing to in any wise shock the sensibilities of the most.refined.

By proper bills appellant complains, at the refusal of the court to instruct the-■jury that unless they found beyond a reasonable doubt that appellant committed the offense of assault with intent to rape to acquit him. In paragraph 4 of the court’s main, charge, he defines each and every element necessary to constitute the offense of assault with intent to commit rape, and -then instructs the jury that unless e^ch and all of the above-named requisites have been estab-lished by the evidence in this case beyond a. reasonable doubt to acquit the defendant of the offense of assault with intent to rape.. This charge correctly submits the very point asked by appellant and is as favorable, if not more so, to him than is the special charge-asked. Appellant also complains because the-court refused to instruct the jury to acquit the defendant, unless they found beyond reasonable doubt that he had committed the offense of aggravated assault. We think -this. charge was correctly refused, as the jury was entitled to find, under the instructions of the court and the facts of the case, that the appellant was guilty of an assault with intent to rape.

We do not think the appellant’s complaint at the court’s action in refusing his instruction, to the effect that assault with intent to rape could not be committed unless the accused unlawfully assaulted the female with intent then and there of penetrating the female organ of the prosecutrix with his male organ, is meritorious under the record in this case. The court had already in his main charge told the jury that it was necessary that they find beyond a reasonable doubt, first, that the accused committed the assault upon the prosecutrix at thé time and place alleged in the indictment; second, that the assault was committed with the specific intent to have carnal, knowledge of the prosecutrix; and that carnal knowledge, as used in the charge, meant the penetration of the private sexual organ of the female by the private sexual organ of the accused. As correctly contended by the state, this charge submitted what appellant requested in his special charge more fully and equally as favorably to the defendant as does the requested special charge.

Appellant also complains at the refusal of the court to withdraw the testimony of the prosecutrix for the reason that, as he contends, the state has failed to show that the witness possessed sufficient mental ability and intelligence to relate the circumstances inquired into without prompting and suggestions. Appellant contends that her testimony, on the contrary, shows that she did not possess the requisite intelligence to be a competent witness. We have very carefully examined this bill of exceptions, and have reached the conclusion that the court did not abuse his discretion in permitting this witness to testify. We think that her testimony discloses that she was of sufficient intelligence, and that she was capable of and did comprehend the obligations of an oath, and that she understood the pains and penalties of perjury in a general and satisfactory manner. She was shown by the bill of exceptions to be seven years of age, and under this condition of the record, the admission of her testimony was properly within the sound discretion of the trial court. Brown v. State, 176 S. W. 51, 76 Tex. Cr. R. 513.

By another bill, appellant complains because the district attorney asked the witness Cousins the following question:

“Do you recall the circumstances of your little girl making some complaint about her being over at Mr. Edelen’s house?”

Objection was made because it involved an assumption that a complaint was made by . Charlotte Cousins to her father, without proof that she made such complaint, and the same was prejudicial to appellant’s rights. The bill does not recite that the grounds stated as the basis of the objection were true and that the evidence did show that such complaint had not been made, and it is not apparent from the bill that any error was committed. The rule is well settled in this state that the truth of the objection must be verified by the bill. The mere statement of a ground of objection is not a certificate of the court that the facts which form the basis of the objection are true. Punchard v. State, 240 S. W. 939, 91 Tex. Cr. R. 603; Oliver v. State, 144 S. W. 604, 65 Tex. Cr. R. 150; Murff v. State, 281 S. W. 1076, decided by this court on March 3, 1926; Robbins v. State, 272 S. W. 176, 100 Tex. Cr. R. 592.

Complaint is also made because the father of the prosecutrix and another witness were permitted to testify that at about 6 o’clock or 6:30 o’clock p. m. sometime after the alleged assault, they smelled the odor of whisky on the appellant’s breath. These bills do not show the length of time which had elapsed between the alleged assault and the time when the odor was smelled. The state correctly contends that if the appellant was under the influence of whisky, or was drinking at the time of the alleged assault, it cannot be contended that this would not be admissible as res gestae and as bearing upon his intent at the time of the commission of the assault, and if it was not in such proximity to the assault as to be admissible for the reasons above suggested, it was incumbent upon the appellant to make this fact manifest from the bill. Branch’s P. O. § 207. We are disposed to think that under the facts • of this case appellant’s objection goes more to the weight and probative force of this testimony than to its admissibility.

We think there is no merit in appellant’s complaint at the court’s action in permitting Mrs. Christian, and also the mother of the prosecutrix, to testify to complaints made by prosecutrix to them. We think that the complaint made by the child upon reaching its mother and, the other witness, as well as the physical condition of the child at the time, were admissible, under the authorities in this state, as a circumstance bearing upon the question as to whether or not prosecutrix was in fact assaulted as alleged.

We have carefully examined the testimony in this case, and have reached the conclusion that appellant is without just ground of complaint.

Finding no error in the record, the judgment is in all things affirmed.

PEB CUBIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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