Rutherford v. State , 142 Tex. Crim. 440 ( 1941 )

BEAUCHAMP, Judge.

Appellant was assessed a fine of $5.00 on a charge of simple assault, from which he brings this appeal.

The complaint and information in the case charged appellant with having made an aggravated assault on Jack Cooper, but the court submitted only simple assault. It is alleged that appellant was an adult male person and that Jack Cooper was a child. The evidence shows that appellant had gone with his family to Lubbock to attend a show; that he, with a part of his family, took seats in the rear and his boy went to a seat near the front; that soon his boy came back to appellant crying and stated that a Mexican boy had hit him. The father went down to the front to make inquiry, at which time Jack Coop eh was pointed out as the'one who struck his boy. Upon being asked about it the Cooper boy admitted that he was the one. There was evidence to the effect that appellant then hit the boy with his fist. This, of course, was denied by appellant, who said he slapped him with his open hand. Jack Cooper was sixteen years old. The appellant; after proving a good reputation in his community, testified that he went to the front and inquired who it was that struck his .hoy -and that when Jack Cooper was pointed out he asked -him if he struck his, appellant’s, boy and he said that Jack Cooper replied he was and “began to get up out of his seat. I slapped him with my open hands and he sat back down, we had no further difficulty.” He said he only went down there to find out what the trouble was, but he thought that when Jack Cooper was getting up that he was going to hit him, appellant, “So I hit him before he got in position to hit me very hard.” He says further, “I would not have hit Jack Cooper had I not thought he was going to hit me.”

As we interpret the extended language of the bills of exception, they present nothing in the face of the record which calls for a discussion in a review by this court. Most of the bills have been refused by the court because he states they are not correct, and counsel has not preserved in the proper way the objection which he attempts to bring to this court.

Finding no error, the judgment of the trial court is affirmed.