Simpson v. State

• Decision Date: 10 March 1920
• Docket Number: (No. 5706.)
• Citation: 220 S.W. 777
• Parties: SIMPSON v. STATE.
• Court: Texas Court of Criminal Appeals

220 S.W. 777

SIMPSON v. STATE.

(No. 5706.)

Court of Criminal Appeals of Texas.

March 10, 1920.

On Motion for Rehearing, April 28, 1920.

Appeal from Tarrant County Court; Hugh L. Small, Judge.

Lee Simpson was convicted of being a delinquent child, and appeals. Affirmed.

John L. Poulter, of Ft. Worth, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the county court of Tarrant county of being a delinquent child, and his punishment fixed at confinement in the state training school for boys for a period of three years.

Several matters are here urged as grounds for reversal. The first complaint is that the trial court erred, in that he submitted in his charge the issue of aggravated assault, but nowhere gave a definition of the offense, or told the jury what were the elements of the same, or what it would take to constitute an aggravated assault. It is specifically provided by the amendment to the Juvenile Law (chapter 26, p. 43, Acts of the Fourth Called Session of the 35th Legislature) that a prosecution of a juvenile as a delinquent child shall be regarded as a misdemeanor case. This, then, being a misdemeanor, errors in the charge, unless fundamental, must not only be excepted to, but special charges correctly presenting the matter complained of must be presented, and, if refused, such refusal must be excepted to and brought here by proper bills of exception. See Vernon's Code Crim. Procedure, p. 518 et seq.

The errors complained of are not fundamental. Martinez v. State, 56 S. W. 58; Wheeler v. State, 56 Tex. Cr. R. 550, 121 S. W. 166; Lofton v. State, 59 Tex. Cr. R. 270, 128 S. W. 384; Bruce v. State, 41 Tex. Cr. R. 31, 51 S. W. 954; Thomas v. State, 55 Tex. Cr. R. 295, 116 S. W. 600. No requested charges appear in the record.

There was no evidence to contradict that of Dr. Trigg, the physician who attended the alleged injured party and sewed up his wound, who testified that the knife used was a deadly weapon.

It is further urged by appellant that the evidence is insufficient to support the finding of the jury. The jury found appellant guilty as charged, and they recommended that he be placed in the state training school for a period of three years. Appellant was charged with being a delinquent child, the facts constituting delinquency being alleged to be that he had committed an aggravated assault on one Dudley Keith, appellant being then under 17 years of age. It was alleged in the complaint that said assault was committed with a knife, the same being a deadly weapon, and that serious bodily injury was inflicted. In Black v. State, 67 S. W. 113, it was held that both of these forms of aggravation may be alleged in the same count, without repugnance. Examining the testimony, we find that Dr. Trigg testified to the deadly character of the knife used. His statement is as follows:

"I dressed the wound, and I think I took about five or six stitches in closing up the skin. I only dressed the wound one time. The knife used is, in my opinion, a deadly weapon."

Appellant himself testified that he was only 16 years of age. The knife was introduced in evidence and exhibited to the jury, and there appears not a word of evidence from appellant, or any other witness, which controverts the testimony of Dr. Trigg to the effect that the knife was a deadly weapon. We think the evidence supports the verdict.

By the express terms of our statute (see chapter 26, Acts of the Fourth Called Session of the 35th Legislature), a boy under 17 years of age who ...