Slaughter v. State
| Decision Date | 13 December 1939 |
| Docket Number | No. 20675.,20675. |
| Parties | SLAUGHTER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Winkler County Court; G. E. Gilliam, Judge.
E. D. Slaughter was convicted for aggravated assault, and he appeals.
Reversed, and prosecution ordered dismissed.
Earl Earp, of Monahans, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is aggravated assault; penalty assessed at a fine of $100 and confinement in the county jail for 60 days.
The prosecution is under Art. 1147, P.C. 1925, which declares that an assault or battery becomes aggravated: "When committed upon an officer in the lawful discharge of the duties of his office, if it was known or declared to the offender that the person assaulted was an officer discharging an official duty."
The transcript contains the complaint and information filed in the case, neither of which complies with this article of the statute in alleging that it was known or declared to the offender that the person assaulted was an officer in the discharge of his official duty. Inasmuch as it is necessary to prove this fact, the failure to allege it in the information is fatal. Therefore, the information found in the transcript would not support the conviction. State v. Coffey, 41 Tex. 46; Johnson v. State, 26 Tex. 117; Bristow v. State, 36 Tex.Cr.R. 379, 37 S.W. 326; Lacoume v. State, 65 Tex. Cr.R. 146, 143 S.W. 626; Stevenson v. State, 110 Tex.Cr.R. 592, 9 S.W.2d 1108.
Furthermore, a transcript of considerable procedure, including several motions, as well as what purports to be a statement of the things said and done in the trial of the case, is in the record, bearing the original signatures of the prosecuting attorney and the attorney for the defense. This is approved by the judge as the statement of facts in the case. By this "statement of facts", it is disclosed that the prosecuting attorney read to the jury only the complaint in the case and did not read the information. It was stated and agreed that the appellant was being tried on this complaint.
We are asked to reverse the case on the ground that the appellant was not tried upon the information appearing in the transcript. Inasmuch as the information which does appear in the transcript and the complaint filed in the case do not comply with the statute, it is not necessary to pass upon that question.
The case is reversed and the prosecution ordered dismissed.
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Payne v. State
...assault, without which the assault would not be more than a simple assault." 252 S.W.2d at 948-949 (citing Slaughter v. State, 138 Tex.Cr.R. 85, 134 S.W.2d 285 (Tex.Cr.App.1939)). The language of the present Penal Code shows simply a shift of the syntactic actor from its obscure and ambiguo......
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Ford v. State, 26061
...entered, which carried a punishment in excess of the maximum fixed to the offense of simple assault. The case of Slaughter v. State, 138 Tex.Cr.R. 85, 134 S.W.2d 285, and authorities there cited are direct authority for holding the information Inasmuch as the complaint and information are d......