McCulloch v. State

• Decision Date: 30 October 1901
• Citation: 65 S.W. 94
• Parties: McCULLOCH v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

65 S.W. 94

McCULLOCH v. STATE.¹

Court of Criminal Appeals of Texas.

October 30, 1901.

Appeal from Hopkins county court; R. B. Keasler, Judge.

Sarah McCulloch was convicted of assault, and appeals. Affirmed.

B. W. Foster, for appellant. Robt A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of a simple assault, and her punishment assessed at a fine of $10, and she prosecutes this appeal.

What purports to be a statement of facts was filed after the adjournment of the term, and no 10-day order is contained in the record authorizing such filing, so that same cannot be considered on this appeal. We also note in the record an order to send up the original affidavit and information, but no such original papers are contained in the record. The complaint and information charge only a simple assault, and the conviction is responsive to that. So the question of an aggravated assault is not involved in this case. The failure of the jury to find the degree of the offense is not material, nothing but a simple assault being charged, they having simply found appellant guilty as charged. Styles v. State (Tex. Cr. App.) 40 S. W. 498.

We have examined the record before us, and there does not appear to be any variance between the name proven and that alleged in the information. Bill of exceptions No. 1, which was intended to bring up this question, as explained by the judge, does not show any variance. Nor is there any variance between the complaint and information as to the date of the alleged offense. Both charge the offense to have been committed on the 10th of October, 1900.

Bills of exception taken to the testimony of the witnesses Bullard, Jennings, and McCulloch do not show the inadmissibility of the evidence as to what occurred between prosecuting witness, Jennings, and appellant, Sarah McCulloch, on the day before the alleged offense. Although this incident occurred on the day before, that fact would not show it was not competent, and did not have a bearing on what occurred the next day, when the assault was committed. The two state witnesses testified that on the day before they rode past the house of appellant, and, when some 30 or 50 steps therefrom, defendant, with her daughter, pointed towards them, and they were laughing and slapping their hands, and that they were laughing at them. For aught that appears in the bill, the difficulty the next day may have occurred about this matter. The bill should have shown...