Appellant was convicted of making an aggravated *Page 291 assault on a little girl, and his punishment assessed at one year imprisonment in the county jail.
We agree with State's counsel in the contention that it is immaterial whether or not appellant had the girl's consent, she being only nine years of age. Being of that tender age, even if he had her consent, it would not authorize him to fondle her person in an indecent manner, and the cases of Knight v. State, 48 Tex.Crim. Rep.; Rogers v. State, 40 Tex. Crim. 355; Hill v. State, 37 Tex.Crim. Rep., and Scroggins v. State, 51 S.W. Rep., 232, correctly so announce the law. But the issue in this case is, does the evidence show that appellant was guilty of indecently fondling the person of little Myrtle Ferguson? The note he wrote and handed to the little girl was an improper one, but in and of itself would not constitute an assault of any character. It may and should be read and considered in passing on the acts of appellant, and if viewed in the light of this letter, his acts amounted to an indecent fondling of her person, the case should be affirmed. The strongest evidence offered in behalf of the State is that of Officer Wilkins, who testifies that the father of Myrtle showed him the letter or note, and asked that he watch them when they went to the moving picture show that afternoon. Mr. Wilkins testifies: "I went down in front of the Texas Theater on Main Street, and when Myrtle Ferguson and her sister entered the theater I followed them, and procured a seat just behind them. Shortly afterwards the defendant came in. He could not get a seat with these girls at first and had to wait a little bit until a seat was made vacant. He then secured a seat next to the smallest girl and sat with her during the rest of the show. He would lean over close to this little girl and had his hand in her lap. He would lean over on her shoulder and put his face down close to hers. He would lean over close to her when talking to her. She had on a long rain coat and his hand was slipped in between the folds of the rain coat in front. I followed them out after the show, arrested him and took him down to the station."
This is the State's case if it has one. Myrtle Ferguson testified that she and her sister Mabel were carried to the picture show by their father, he knowing that appellant would go with them to the show. She testified: "On February 13, 1915, which was on Saturday, the defendant and my small sister, who is eleven years old, and myself saw a moving picture show together on Main Street, at the Texas Theater. My sister and I went into the picture show first and left him (appellant) talking to my father out in front. Mr. St. John came in after we were seated and he could not get a seat with us. He sat across the aisle until a seat was made vacant near us and then I called his attention to it and he came over and sat with us. He sat on my left in the adjoining seat to mine, and my sister Mabel sat on my right, in the adjoining seat, and we saw the picture together. The lights in the show were dimmed. There were lots of people sitting in front of us and behind us, and during the show he had his hand in my lap resting on my knee, and let his hand rest in my lap and held my hand. He had *Page 292 held me in his lap and had had his arm around me in that way, and held my hand in his a number of times before. He did not mean any harm and I did not think it was wrong."
Her eleven-year-old sister Mabel testifies in substance to the same thing, and says she and her sister often went to a moving picture show managed by appellant; that she had "often seen Mr. St. John hold Myrtle on his lap with one arm around her like a man holds a child on his lap. He never did seem to try to conceal or keep people from seeing that he was making over Myrtle and petting her and playing with her and holding her on his lap. He did it right out before everybody and before me, and before his wife and his wife's family, and where everybody in the moving picture show, or buying tickets, would see him. Myrtle never said anything to me about the defendant's treatment of her. Mamma and papa knew that we were over there at the picture show all the time. I did not think there was anything wrong in his treating Myrtle in that way, and I never did object to it or say anything about it either to Myrtle or my mother or to Mr. St. John or any of his people, and Mrs. St. John or her people never did say anything about it being wrong, and Myrtle never did say anything about it to me which showed that she thought anything about it other than as a child. I never did see Mr. St. John act with Myrtle in any way that was naughty, and never did hear him say anything naughty to her, and Myrtle never did tell me that he had ever said or done anything naughty to or with her."
All the testimony shows that appellant and his wife were neighbors of Mr. Ferguson. That Mr. Ferguson's little girls often went to a picture show run by appellant, who admitted them free. That little Myrtle was a favorite of appellant and he made much of her in the presence of his wife and in the presence of others. She was often in his lap, he playing with her as one would with a child. He says: "I have known Myrtle Ferguson since we first began to run the moving picture show. Her home was about three or four doors from the moving picture show. She and her sister Mabel were over at and around the show almost every evening, and were around my wife and myself whenever they were over there. I became very fond of Myrtle, as did also my wife, and she seems to be very fond of us. I am very fond of children, and Myrtle has an affectionate disposition, and is very lovable. My wife was generally with me around the show, and her father was always there, being usually in the operating room, and her mother and sister were frequently over there. Myrtle's sister Mabel always came over to the show with Myrtle. They both of them went in and out of the show whenever they pleased."
Appellant does not deny laying his hand in the lap of the little girl on the occasion charged, but the evidence, under the peculiar circumstances of this case, we do not think shows an indecent fondling of her person.
The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 293