Bennett v. State , 79 Tex. Crim. 380 ( 1916 )

The complaint charged appellant with making an aggravated assault on Viola Scott, alleging that appellant was an adult male and the said Viola Scott a child.

The facts show that appellant is a teacher, and that he severely whipped Viola Scott, she being one of his scholars.

The contention is made that the court erred in submitting simple assault, and that the verdict of the jury finding him guilty of simple assault can not be sustained, in that appellant is an adult male person, and the law makes an assault by a male person on a child an aggravated assault. While the information alleges appellant to be an adult, yet there is no evidence in the record that he is an adult, and it has been frequently held by this court, that where the evidence fails to show that the accused is an adult, a judgment of conviction for aggravated assault can not be sustained. Hartsell v. State, 55 Tex.Crim. Rep.; Smith v. State, 51 Tex. Crim. 645; Robinson v. State, 25 Texas Crim. App., 111; Andrews v. State, 13 Texas Crim. App., 343; Davis v. State, 76 S.W. Rep., 466; Ellers v. State, 55 S.W. Rep., 813; Kemp v. State, 8 S.W. Rep., 804. So, instead of the evidence not authorizing the verdict of the jury, if the jury had found appellant guilty of aggravated assault, it could not have been sustained, as there is no evidence in the record to show that he is an adult.

The only bill of exceptions in the record complains that the court erred in not giving the special charge instructing the jury to return a verdict of not guilty. The evidence, while conflicting, from the State's standpoint, amply supports the verdict, and the court did not err in refusing to instruct a verdict of acquittal.

This being a misdemeanor, there are no other questions presented in the motion for a new trial we can consider. Basquez v. State, 56 Tex.Crim. Rep..

The judgment is affirmed.

Affirmed.

ON REHEARING. April 19, 1916.