Northern v. State , 152 Tex. Crim. 569 ( 1948 )

Appellant insists that the proof showing appellant killed deceased by kicking her in the mouth and around the face and head with his shoe heels did not constitute proof of killing with the feet, as alleged in the indictment, and that we erred in reaching a contrary conclusion.

When appellant, as the proof showed, kicked deceased "in the mouth with my shoe heel," and "kicked her three times around the face and head," the force there used and exercised, causing death, was generated and motivated by kicking with the feet — which was therefore the instrumentality causing the death of deceased. That the feet were at the time clad with shoes with heels thereon did not change or alter that instrumentality.

We remain convinced that the proof authorized the jury's conclusion that the death of the deceased was caused by appellant's kicking her with his feet.

Appellant insists that his objection to the introduction of the birth certificate went not to the insufficiency of the predicate as a basis of its introduction but rather to the fact that appellant was not identified as the baby referred to in the certificate as having been born to Mrs. E. D. Northern. Obviously, such objection went to the weight and probative force of the certificate rather than to its admissibility. Moreover, the State, by other testimony, identified appellant as the baby mentioned in the certificate.

Appellant insists that the trial court should have instructed the jury to acquit appellant in the event they entertained a reasonable doubt as to whether he had arrived at the age of seventeen years at the time the offense was alleged to have been committed, it being contended that a male child can never be punished, criminally, for a crime committed by him before he reached the age of seventeen years. In support of this contention, appellant relies upon that provision of the Delinquent Juvenile Act (Vernon's Ann. Civ. Statutes, Art. 2338-1, Sec. 13) which provides, "nor shall any child be charged with or convicted of a crime in any court."

This question was before this court in Dearing v. State,151 Tex. Crim. 6, 204 S.W.2d 983, where it was held that the provisions of the act referred to did not preclude a male child, after reaching the age of seventeen years, from being tried and convicted of a crime committed by him before reaching the age of seventeen years. Giving effect to that holding in the instant case, it is apparent that appellant could be here prosecuted for the offense charged, even though the jury should find that he was not seventeen years of age at the time the offense was alleged to have been committed. That he had not reached the age of seventeen years at the time the offense was committed was, therefore, unavailing.

We remain convinced that the articles found in the automobile were admissible not only for the reasons assigned in our original opinion but for the further reason that same were so closely connected with the transaction, as a whole, as to be a part thereof.

In view of the penalty inflicted, we have again reviewed the entire record. We remain convinced that reversible error is not reflected.

The motion for rehearing is overruled.

Opinion approved by the Court.