holding flesh to flesh contact not required in offense of fondling
How later courts described this case
- holding flesh to flesh contact not required in offense of fondling
- no requirement of flesh to flesh contact in offense of fondling
- no requirement of flesh to flesh contact in offense of fndling
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
MORRISON, Judge.
Appellant forcefully contends that we were in error in our original opinion, wherein we said that we had found no testimony as to an unintentional touching of the genital portion of the boy’s body. Our attention is directed to the following excerpt from appellant’s testimony:
“I did not, either at the time I handed the book back to Artié Fisher, or any other time, put my hand anywhere about his private. I handed the book back to him and the lights went out, and I stepped back to the back of the seat. It could have happened that I touched that boy as I handed the book back to him, but I deny that I grabbed hold of him anywhere, or touched him about his sex part. I did not at any time make any attempt to place my hand anywhere about his person, or his sex part.”
We find that appellant’s defense of unintentional touching was covered by the court’s charge. The court required a finding that the act was intentionally done, and then charged the jury as follows:
“If you believe from the evidence that the defendant, John J. Miles, placed his hand upon and against the sexual part of Artie Fisher, a male person under the age of 14 years, if he did so place his hand, through an accident or mistake, then you will acquit the defendant, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”
In interpreting the statute in question, we made an earnest effort to delineate that conduct which would make one guilty of “placing one’s hands” from the conduct that would make one guilty of “attempting to place one’s hands.” This, we did not do to appellant’s satisfaction. We think the case at bar demonstrates both types of conduct. Quoting from the testimony of the boy,
“A. He made two grabs or attempts to grab me in the region of my private.
*192 “Q. One time when he grabbed your penis and the other time when he grabbed your comb (which was evidently in his pants’ pocket) ? A. Yes, sir.”
The time he grabbed the penis, the accused “placed his hands.”
The time he grabbed the comb, the accused “attempted to place his hands.”
This, we think, was the logical construction to be given the wording of the statute.
It is apparent, from the bill of exception relating to the argument of the district attorney, that appellant’s counsel had given the jury his view of how the statute in question should be interpreted. In answer thereto, the district attorney gave the jury his views as to the consequences which would follow if appellant’s interpretation of the law should prevail.
Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.