Balding v. State

• Decision Date: 09 March 1887
• Citation: 4 S.W. 579
• Parties: BALDING v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

4 S.W. 579

BALDING v. STATE.¹

Court of Appeals of Texas.

March 9, 1887.

Appeal from district court, De Witt county.

The indictment charged an assault to murder Alexander Murphree. The conviction was for aggravated assault, and the penalty imposed was a fine of $25, and 30 days in the county jail.

It appears from the testimony that the injured party was a teacher in the public schools of De Witt county; that the appellant, who was 13 years old, was one of his pupils; that on Monday of the week the teacher assigned to his class in arithmetic two examples to be worked at home over night, and returned next morning; that all the members of the class save defendant worked the examples. Defendant said that he did not want to work examples at home. The teacher then assigned him two other examples to be worked over night, and returned next day, and warned him that a whipping would be the penalty of non-compliance. When the examples were called for the next day, the defendant said that he would work them in school if allowed to, but would not work them at home, giving no excuse for his contumacy. The teacher undertook to chastise the defendant, and struck him one blow with a switch, when the defendant drew a butcher knife, and stabbed the teacher under the shoulder blade, and in the thigh.

Fly & Davidson, for the appellant. Walter Weaver, for the State.

WILLSON, J.

An unbroken line of decisions in this state hold that, under an indictment charging an assault with intent to murder, a conviction may be had for an aggravated assault, although no circumstance of aggravation is alleged in the indictment. In Davis v. State, 20 Tex. App. 302, we gave our views at length upon this question, citing the authorities in support of the same. We adhere to the opinion there expressed, and so often announced in other cases, both by our supreme court and this court. The law confides to teachers a discretionary power in the infliction of punishment upon their pupils, and will not hold them responsible unless the punishment inflicted be excessive, or be inflicted merely to gratify their own evil passions. Moderate restraint and correction by a teacher of a pupil is not an offense, but is authorized by the law. Penal Code, art. 490; Dowlen v. State, 14 Tex. App. 61; Stanfield v. State, 43 Tex. 167; 2 Bish. Crim. Law, §§ 880, 881, 886; 1 Whart. Crim. Law, § 632.

Teachers have the right, the same as parents, to prescribe reasonable rules for the government of children under their charge, and to enforce, by moderate...