Price v. State , 35 Tex. Crim. 501 ( 1896 )

Appellant was convicted of an aggravated assault and battery, and his punishment assessed at sixty days in the county jail and a fine of $25, and from the judgment of the lower court he prosecutes this appeal. A number of errors are assigned. We will only notice such as are likely to occur on another trial of the case. What the prosecutrix may have said to her mother when she reached the house, if admissible, was only admissible as a part of the res gestæ of the alleged assault. If it was so closely connected in point of time, and the declarations were spontaneous, and sprang out of the assault, such statements to her mother were admissible; otherwise not. The court's remarks in that connection, that he was not sure but that the case was an assault with intent to rape, were improper, and ought not to have been made. We believe it was permissible to show by the mother of the prosecutrix her condition and appearance when she returned home, but nothing that she said on the subject was admissible, unless, as before stated, her declarations were a part of the res gestæ of the assault. In our opinion, it was also permissible to show by the witness, Cap Peters, that he recognized the defendant by his voice, or he could state his impression on that subject. No objection was made to the information in this case, either by a motion to quash or in arrest of judgment. We have, however, examined the information carefully, to ascertain whether or not it charges the offense of which appellant was convicted, to-wit: an aggravated assault. The language of the information in the charging part is as follows: "Did then and there unlawfully and wilfully, in and upon Alice Hill, make and commit an aggravated assault, and the said Rube Price was then and there a male person, and the said Alice Hill was then and there a female person, and the said Rube Price did then and there use violent and indecent familiarity with and upon the person of the said Alice Hill, and without her consent and against her will, with the intent then and there to have and obtain improper connection and carnal intercourse with her, the said Alice Hill; which said acts and conduct of the said Rube Price towards the said Alice Hill, made and committed as aforesaid by said Rube Price, did then and there arouse the strongest feelings of shame, mortification, and indignation in the mind of said Alice Hill." Our statute on the subject names ten distinct grounds on which an aggravated assault may be predicated, but the offense charged in the information does not appear to come under either one of the grounds named. The fifth subdivision of article 496 of the Penal Code reads as follows: "An assault becomes aggravated when committed by an adult male upon the person of a female or child, or by an adult female upon the person of a child." The charging part of the information now before us comes nearer the causes set out in said subdivision than under any other, but it will be noticed that there is no allegation that the appellant in this case was an adult male; and the proof shows him to be only 16 years of age, which, according to previous decisions of this court, does not constitute him an adult male person. A number of cases can be found in which it has been said by this court that an indecent assault made by a male person upon a female, with intent to have carnal intercourse with her against her will, would be an aggravated assault. But in all such cases it will be found that the indictment was a good indictment covering an aggravated assault, either as an indictment for assault with intent to murder, or an indictment for an assault with intent to rape, or an indictment under some one of the subdivisions of the statute constituting an aggravated assault. See, Curry v. State, 4 Tex.Crim. App., 574. We will not dismiss the case, as the information may be good for a simple assault, but it does not charge an aggravated assault, and the conviction for such aggravated assault cannot be sustained. The judgment of the lower court is reversed, and the cause remanded.

Reversed and Remanded.