Braswell v. State , 170 Tex. Crim. 243 ( 1960 )

WOODLEY, Judge.

The offense is aggravated assault; the punishment, six months in jail.

The only witness who testified before the jury was the 17-year-old prosecutrix named in the information. She testified that appellant came to her home and assaulted her by slapping her with his open hand several times, and assaulted her with a hunting knife.

The ground of aggravation alleged in the information was that the assault was made by an adult male upon a female. (Another ground of aggravation could have been alleged because of the use of a knife. Art. 1147 (10) V.A.P.C.)

The sole claim for reversal is the contention that the state did not prove that appellant was an adult male.

The prosecuting witness testified that appellant was 22 years old. She also testified that he was an adult male, and this testimony was not withdrawn from the jury.

The appellant relies heavily upon the conclusion that the witness accepted on cross-examination, namely, that she being only 17 years of age, it “would obviously be impossible” for her to say with certainty that the defendant was an adult male.

If the rule be that only an adult may testify that another is an adult, then the testimony of a 20-year-old that his parents or grandparents, or the parent or grandparent of another 20 year old, was over 21 years of age would be without probative value.

If appellant had not attained the full age of 21 years at the time he assaulted the girl, such fact could easily have been established, and the offense charged would have been reduced to simple assault.

The 17-year-old girl’s testimony that appellant was an adult male was not without probative value, and the force of such testimony was increased by the absence of evidence to rebut it.

The judgment is affirmed.