The opinion
GRAVES, Judge
(dissenting).
My Brethren have agreed to the affirmance of this cause, and to the overruling of the motion for a rehearing. I am not in accord with their entire views on this matter, especially as shown by their treatment of bills Nos. 4, 7, 8 and 9.
The facts show that appellant and his wife were the parents of five boys and one girl; that the father was especially fond of and proud of his daughter, Virginia Ruth, who was born on March 9, 1926, and at the time of this unfortunate occurrence she was fourteen years old, and an honor student in her school. This young girl had not been allowed to keep company with boys, but the father and mother had learned that the deceased, Glen Cox, nineteen years of age, had been paying some attention to the daughter. This was objectionable upon the part of the girl’s parents. The father, appellant, had an interview with the deceased, and told him that he objected to such attentions being paid to his daughter. Appellant testified' that from conversations with the deceased, relative to his conduct with girls, he did not think he was the right kind of boy to associate with *337 his daughter. He had a conversation with Glen before Christmas, 1940, and “told him he was just too old a man to go with that young a girl. * * * He promised not to go with her any more.” Afterwards the daughter, Virginia Ruth, appears at her home with a watch, which was a present from the deceased. Her parents directed her to return the watch, and her mother testified: “I told her it was improper for a boy to give a girl a watch when he really had never had any dates with her, or gone with her that we knew of. We didn’t think he had. I told her to return the watch to him. About a week after that I learned of her having dates with him, and I talked to her again.” It seems that Virginia Ruth again became possessed of the watch, and the mother herself took the watch back to the deceased, and she and her husband “talked to deceased about his relationship with Virginia, and he said if we felt that way about it he guessed it would have to be that way.” Evidently upon the daughter’s continued association with the deceased the father punished her by whipping her. On Monday, January 6, 1940, appellant, at about 12 or 1 o’clock that day, found out that his daughter had disappeared from school in company with the deceased. He immediately began to hunt for them. He phoned to surrounding county seats, and enlisted the services of the sheriff and friends trying to locate the couple. He knew that if they were married they would have to procure a license from some county seat, which license could only be secured by a showing of the daughter’s age to be eighteen. He was unable to locate them; he neither slept nor ate, so his wife said, but drove from point to point in his fruitless search, and often visited the sheriff’s office in his home county endeavoring to have him find his lost girl. The sheriff phoned adjoining counties, even phoning into Oklahoma, but was unable to locate the missing couple. Appellant and his wife finally received a postal card from his daughter on Saturday, after she had been gone nearly a week; the card was read to him by his wife; it said: “Hope every one is finé. We are O.K. and having a swell time. Sorry we had to do like we did, but you know what caused it. Don’t know when we will be home, but won’t be at Ector for a few days. Love. Glen and Virginia.” Upon the reading of this card to appellant by his wife, he said: “I don’t believe they are married,” so the wife testified.
Appellant’s bills Nos. 4, 7, 8 and 9 all relate to the proof upon the part of the State that the father punished his daughter for going with the deceased. Bill No. 4 says that the fact of *338 such punishment was proven by the State in its evidence in chief and before the appellant had introduced any testimony, and the qualification thereto shows that the fact that the father told the daughter that Glen Cox was no good, and that he objected to him going with his fourteen year old child, was shown prior to the proof of the whipping.
Bill No. 7 relates to Virginia Ruth, upon her cross-examination, being called upon to testify to the fact that her father had whipped her for going With Glen Cox.
Appellant objected and excepted to the trial court’s charge also in that same did not embody an instruction to the jury that a parent had the right of moderate restraint or correction over their child, and violence used in such a manner was lawful, as shown in Art. 1142, P. C. subdiv. 1. Thus the issue became drawn.
The parent’s chastisement of this fourteen year old girl because she was disobeying them and keeping company with this nineteen year old young man was utilized for the purpose of showing animus and malice towards such man, and yet the law, man’s as well, as God’s, gave them that power, and surely imposed upon them the duty of watching over and guiding the conduct of this young girl, even to the extent of punishing her for a failure to obey them. I do not think the fact of her punishment was available to the State for any purpose. It would be a strange doctrine that would take away from the parent the privilege and the duty of guiding the footsteps and guarding the conduct of his young daughter, especially in her association with a man such as appellant knew this one to be. To take the evidence of a disapproval of a clandestine suitor for this young girl’s attentions and utilize the same as an evidence of hatred for and malice against the suitor, carried "to its climax, would cause the parent to be dumb in the presence of his daughter, and even take from him the power to offer an objection to her receiving the attentions of the veriest libertine. .
That this appellant was suffering and tortured, during the near week of his daughter’s disappearance is not only shown but can be gathered from his conduct in. endeavoring to find her and to take her back home. She could not even consent either to yield her body to the deceased, nor could she marry *339 him without her parents’ consent. See Art. 4605, R. C. S. She was but a few months removed from the ban of the statute, Art. 4603, R. C. S., that would not allow her to marry at all until she became of the age of fourteen years.
If this appellant is guilty of any offense, the undisputed facts, so the writer thinks, show him guilty of no higher offense than murder without malice, and I can not agree that the evidence of his punishment to his daughter because of her disobedience was admissible herein for any purpose, and surely, if admitted, Art. 1142, sub. 1, P. C., should have been given, allowing a moderate punishment by a parent upon a child. Appellant’s objection, as well as his wife’s to the attentions being paid by the deceased to the daughter, was amply shown by both parents, as well as by Virginia Ruth’s testimony, and his punishment of the girl could but have served to aggravate the punishment meted out to appellant. If guilty at all, I think the testimony rises no higher than murder without malice. I think this cause should have been reversed because of the admission repeatedly of the father’s punishment of his daughter.
I do not think that the exercise of moderate restraint by a parent over a child could evidence a heart regardless of social duty and fatally bent on mischief, nor that the vigorous objection of the parent of a fourteen year old girl being shown attention by a nineteen year old man whose character was objectionable to the parent is any evidence of hatred upon the part of the parent.
I herewith respectfully enter my dissent in this affirmance and the overruling of this motion.