Reynolds v. State

• Decision Date: 12 January 1910
• Citation: 124 S.W. 931
• Parties: REYNOLDS v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 931

REYNOLDS v. STATE.

Court of Criminal Appeals of Texas.

January 12, 1910.

Rehearing Denied February 9, 1910.

Appeal from Delta County Court; C. C. Dunagan, Judge.

Tom Reynolds was convicted of aggravated assault, and he appeals. Affirmed.

Lane & Ratliff, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This appeal results from a conviction had in the county court of Delta county, had on May 19, 1909, on a charge of aggravated assault committed by appellant on his wife.

1. Before entering into trial he interposed a plea of former acquittal. The affidavit and information contained in his plea recites the assault to have been made upon one Liz Randles. It is not denied, as we understand, that the first trial really involved the same transaction and assault as that for which he was convicted in this case. We gather, also, that the former acquittal resulted on account of the variance between the name of the person alleged to have been assaulted as charged in the information and as in fact developed on the trial. In the case of Branch v. State, 20 Tex. App. 599, it was held that where there had been an acquittal or a nolle prosequi entered, after pleading to a charge of theft from Fabian Flores, a plea of former jeopardy would not lie as against an indictment charging the theft from Antonio Flores. So it would seem to follow that where there is a distinct, unquestioned error in the name of the person assaulted as set out in the information, and an acquittal thereafter had, this would not bar prosecution for an assault upon the same person charged under the correct name.

2. The charge of the court is complained of, in that, in defining what constitutes assault and battery, it is broader than the means charged in the information to have been used, and in this respect erroneous. The charge is that appellant, being an adult male, committed an aggravated assault and battery by striking his wife, Rose Reynolds, with his hands and fists. In defining what constitutes an assault, the court, among other things, stated that the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, under circumstances calculated to effect that object, comes within the meaning of an assault. However, when the court came to submit the issue to the jury, he did so in this language: "If you believe from the evidence beyond a reasonable doubt in this case that the defendant, Tom...