dissenting.
I also dissent. While I do not particularly disagree with the views expressed by Judge Odom in his dissenting opinion, rather than enter into the squabble about the meaning and applicability of V.T.C.A. Penal Code, Section 1.061 and what the Legislature could have said but did not, it is enough for me that before there was a guiding statute relative to mistreatment of males this Court held that the word “child” applied “only to boys under the age of 14”2 and, when the Legislature did address the subject, it indicated agreement, albeit obliquely.3
The perplexity nagging the majority— the singular phraseology of Section 22.04— is resolved by the result of first application of the common acceptation rule to this problem in Bell v. State, 18 Tex.App. 53 (1885). But the best technical justification for it is that, unlike every statutory provision cited in note 1 of the majority opinion, the genesis of Section 22.04 is not the 1970 proposed revision of the Penal Code.4 Thus Article 1148a, Penal Code 1925, as amended, *383obviously of independent origins,5 was not subjected to thorough examination for consistency with a proposed revised penal code that received scant attention in the same session of the Legislature.6
In these times of earlier maturity of children, at least as seen by most, I perceive no policy reason impelling the Legislature in 1971 or 1973 to depart from the settled understanding of the meaning of “child” as a victim of violence or sexual abuse. And, in my judgment, it did not.
Accordingly, I dissent.
ROBERTS and PHILLIPS, JJ., join.
. Section 1.06 really just changes by one day the common law rule that a person attains a given age at the first moment of the day preceding the anniversary of birth, 86 C.J.S. 832; apparently that rule, early approved in Ross v. Morrow, 85 Tex. 172, 19 S.W. 1090 (1892) and thereafter reaffirmed in Pate v. Thompson, 179 S.W.2d 355 (Tex.Civ.App. — Waco 1944, writ refused), still applies in the civil law of this State. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. Wilman v. State, 63 Tex.Cr.R. 623, 141 S.W. 110, 111 (Tex.Cr.App.1911): “The authorities in this state hold that the word ‘child’ under our statute, in reference to aggravated assault, applies only to boys under the age of 14. . (citing authorities going back to [McGregor v. State,] 4 Tex.App. 599).”
. Article 1147, Penal Code 1925 made an assault or battery aggravated when, in subdivision (9), it was committed by an adult male upon the person of a “child,” and then provided that the subdivision “shall not apply to the act of person who fondles . the sexual parts of a male . . . under the age of fourteen (14) years . . . .” See Article 535d, Penal Code 1925 and Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (Tex.Cr.App.1952).
. See Texas Penal Code, A Proposed Revision, Final Draft, October 1970, West Publishing Co., St. Paul. As the disposition table shows, at that time Article 1148a, Penal Code 1925, as amended, did not exist.
. Actually the phrase “14 years of age or younger” did not originate in the 1973 Penal Code revision. It first appeared in a House committee amendment to Senate Bill 445 that was enacted as Acts 1971, 62nd Leg., ch. 911, § 1 and was codified as Article 1148a, Penal Code 1925. Initially, as introduced and as passed by the Senate, the bill proscribed intentional battering of a child — without definition; the House adopted a committee amendment that inserted the phrase in two places following the word “child,” thusly: “a child who is 14 years of age or younger,” 1971 House Journal 3481; the Senate concurred in the amendment, 1971 Senate Journal 1326. Section 2 of the same bill amended subdivision (9) of Article 1147, supra, to limit an aggravated assault to one committed “by an adult male upon the person of a female,” thereby deleting the special category of “child” as a victim of aggravated assault, except as to fondling etc. The result was that a regular aggravated assault on anyone committed by other prescribed means was punishable by provisions of Article 1148, Penal Code 1925 — a maximum of two years confinement and a thousand dollar fine— whereas an assault that constituted child battering, as denounced by newly enacted Article 1148a, supra, was punishable by confinement for a maximum of five years. As thus reviewed and analyzed the essential purposes of Senate Bill 445, as I see them, were to regard a child like any other person as a victim of aggravated assault — retaining, however, a special distinction for cases of sexual abuse of a child under the age of fourteen years — but to provide additional protection from the more serious as-saultive offense of inflicting serious physical injury on a child, rather than to add 365 days to the settled application of the age of a “child.”
In this connection my view seems supported by the Practice Commentary following § 22.04, which states:
“The section restores prior Article 1148a, enacted in 1971, but substantially increases the penalty of that former offense.
* * * ‘Child’ was defined by the courts as a male younger than 14 and female younger than 12, e. g., Wilman v. State, [63 Tex.Cr.R. 623,] 141 S.W. 110 (Cr.App.1911). Section 22.04 standardizes the deñnition for both sexes at age 14 . . . ”
. As noted in Introduction to 1973 Revision, Texas Penal Code, the draft that was introduced in 1971 “was not acted on by either house,” 1 V.T.C.A. Penal Code vii.