Jones v. State

MORRISON, Judge

(dissenting).

In order to accept prosecutrix’ testimony completely and reject without consideration the testimony of appellant and his witnesses, one must ignore what to me is a compelling circumstance.

Prosecutrix’ father was a tenant farmer working on the halves for the appellant. A short while before the alleged assault appellant and prosecutrix’ mother had had a misunderstanding over financial matters. Prosecutrix claims the indecent proposal was made on Thursday afternoon. And yet she made no report of it until Sunday. There was a telephone next door; she did not use it. Her husband came home Thursday night. She did not tell him. On Friday and Saturday she remained silent. Not until after she visited with her mother and then returned to her home in Tyler on Sunday afternoon did she tell her husband. She does not say she told her mother. To me this does not *322comport with human reason, and in view of appellant’s alibi witnesses I find it difficult to accept.

Forgetting this, I now examine her account of what transpired. She said he took hold of her hand and offered her $5.00 for her sexual favors. My brethren say this constitutes an assault. They overlooked the fact that it has long been the holding of this court that there must be an intent to injure by the means used. There was clearly no intent to inflict physical injury. Such would have been inconsistent with the alleged purpose of his visit. No physical injury is claimed to have been sustained. Then she was not injured unless the incident caused her a sense of shame or some disagreeable emotion of the mind, and the jury should have ben so told. Such has been the consistent holding of this court through the years and should not be departed from because it is a sound rule. Attention is here directed to the holdings of this court in Floyd v. State, 29 Texas App. 341, 15 S.W. 819 Hawes v. State, 44 S.W. 1094; Pittcock v. State, 73 Texas Cr. Rep 1, 163 S.W. 971; Clancy v. State, 93 Texas Cr. Rep. 117, 29 S.W. 2d 394. It is obvious from reading the record in this case that the prosecutor and the trial judge had not read the opinions of this court. This they should have done before the case was called.

The appellant was a married man with a large family and had never before been arrested. The appellant put his reputation in issue, and the state could not attack it. I cannot bring myself to agree that he should spend a year in jail until a jury under appropriate instructions finds that someone had been injured.

Remaining convinced that this cause was properly disposed of originally, I enter my dissent.