Stripling v. State

• Decision Date: 13 April 1904
• Citation: 80 S.W. 376
• Parties: STRIPLING v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 376

STRIPLING v. STATE.

Court of Criminal Appeals of Texas.

April 13, 1904.

Appeal from Falls County Court; W. E. Hunnicutt, Judge.

P. R. Stripling was convicted of an aggravated assault, and appeals. Reversed.

L. N. Stanley, Lewellyn & Connally, and Rice & Bartlett, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of an aggravated assault, the fine assessed being $25. The charging part of the information is as follows: That appellant "did then and there unlawfully, in and upon the person of Willie Glenn, commit an aggravated assault and battery, the said P. R. Stripling then and there being an adult male person, and the said Willie Glenn a female," etc.

The first ground of the motion for new trial insists that the complaint and information are insufficient to charge the offense of aggravated assault against defendant. The complaint and information are sufficient; they follow the approved form.

Appellant's second insistence is that the court erred in permitting the state to prove the age of prosecutrix, because the same was prejudicial to defendant, and not an issue in the case, not relevant or material to any issue. Appellant was charged with making an assault upon a female, and the age of the female is admissible to throw light upon the transaction, the evidence showing that she was barely 14 years old.

Appellant further complains of the remark of the court, in the presence and hearing of the jury, after the cross-examination of the witness Willie Glenn had concluded, "that in the future conduct of the case he desired the counsel for defendant to confine themselves to the rules of evidence." Appellant insists that this was calculated to injure the rights of defendant. It is not shown in what way it could or did injure him, and the admonition of the court for the attorneys to adhere to the rules of evidence is not improper.

Appellant complains that the state was permitted, over his objections, to prove that defendant was a married man at the time of the commission of the alleged offense, because the same was immaterial and irrelevant to any issue in the case, and was calculated to prejudice the minds of the jury against defendant. The proof in this case shows that defendant barely knew prosecutrix, and overtook prosecutrix and her sister, riding in a buggy with one Trammel, going to a party. Upon the request of Trammel, defendant proposed to take one of the girls in the buggy with him. Prosecutrix got in his buggy, and, after riding a short distance with him, her testimony shows that he put his arm around her and embraced her, or attempted to do so, which she resisted, and subsequently she got out of the buggy, and got back in the buggy with Trammel and her sister. Defendant practically admits this statement, but insists he was merely jesting and joking with the girl; that his advances were prompted by the conduct of the prosecutrix, who, he says, took his hat off and began to fan him, and did other indiscreet acts indicative on her part of a willingness to submit to improper familiarity on his part. To support appellant's contention, he cites us to Smith v. State (Tex. Cr. App.) 68 S. W. 995. That was a case where appellant Smith was being prosecuted for rape upon a girl under the age of consent, and the state was permitted to prove that defendant was a married man with two children. We there held that such testimony was not admissible, on the theory that it would merely serve to aggravate the punishment of defendant. We do not see on what theory this testimony could be admitted in this case. However, appellant having received the lowest punishment for an aggravated assault, it does not constitute reversible error.

Appellant objects to the following portion of the court's charge: "Where an injury is actually caused by violence to the person or to the feelings of a person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame, or other disagreeable emotions of the mind." And following this paragraph is the following: "You are charged that if you believe from the evidence that the defendant, in the county of Falls, and state of Texas, did, upon the person of Miss Willie Glenn,...