Maloney v. State
| Decision Date | 15 December 1909 |
| Citation | 125 S.W. 36 |
| Parties | MALONEY et al. v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Grimes County Court; Hood Boone, Judge.
J. R. Maloney and W. H. Horton were convicted of assault, and appeal. Reversed and remanded.
Buffington & Bowen and M. E. Gates, for appellants. F. J. McCord, Asst. Atty. Gen., for the State.
Appellants were convicted in the county court of Grimes county, on the 28th day of April of this year, of simple assault, and a fine of $5 assessed against each of them. They were charged by information with an assault upon one J. H. Foster. The allegation is that appellants "did then and there strike, beat, wound, and bruise the said J. H. Foster with their hands and fists."
1. On the trial the court gave, among other things, the following instruction: "An assault and battery may be committed by the use of any part of the body of the person committing the offense, as of the hand, foot, head, or by the use of any inanimate object, as a stick knife, or anything else capable of inflicting the slightest injury, or by the use of any inanimate object." The court also gave the following charge: "Any means used by the person assaulting, as by spitting in the face or otherwise, which is capable of inflicting an injury, comes within the definition of an assault, or an assault and battery, as the case may be." And then proceeded to instruct the jury as follows: "Now, if you believe from the evidence beyond a reasonable doubt that the defendants, J. R. Maloney and W. H. Horton, or either or both of them, did on or about the 8th day of March, A. D. 1909, in the county of Grimes, state of Texas, as charged, commit an assault, or an assault and battery, upon J. H. Foster, you will find them guilty and assess their punishment at a fine of not less than $5 nor more than $25 each." Complaint was duly made of this charge, and it is now urged that same should be confined to the case made in the complaint, and that the court should not have instructed the jury with reference to an assault by means not alleged in the information. There was no evidence of the striking of Foster with a stick, knife, foot, head, or any inanimate object. This complaint is well taken. In the case of Herald v. State, 37 Tex. Cr. R. 409, 35 S. W. 670, it was held that, where an information charged an aggravated assault with a knife, the allegation is not sustained, nor a conviction warranted, upon proof that the assault was committed with a...
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