207 S.W. 96 | Tex. Crim. App. | 1918
Lead Opinion
Appellant was assessed a fine of $25 on conviction for aggravated assault under an allegation that he inflicted serious bodily injury upon J.W. Lovelady.
The appellant struck the injured party with a policeman's "billy," an instrument about twelve inches long, made of leather wrapped around shot or metal of some kind. From the State's evidence it appears that appellant was a man about thirty years old, weighing two hundred pounds, and Lovelady was about sixty-three years of age and was standing at a water cooler with a glass of water in his hand about to take a drink of water when he was struck the blows complained of. Lovelady said that "the blows were on the left side of my head, and he knocked the life out of me, and cut the skin to the skull bone in two places. The other blew was sorter across my neck and did not break the skin. . . . I was laid up a couple of weeks, and suffered from the cuts on my head a great deal. Could not wear my hat for about two weeks." A doctor described the wounds as apparently having been made with some blunt instrument cutting through the flesh to the skull bone. "The injuries were painful, but not necessarily serious. I make this answer in view of the fact that I know how the patient turned out afterwards."
We think the evidence was sufficient to sustain the finding of the jury that the injured party received a "serious bodily injury." Housley v. State, 55 Tex.Crim. Rep.; Bruce v. State, 41 Tex.Crim. Rep..
While there is no bill of exceptions properly preserving it, we find that appellant requested the court to instruct the jury that the burden was upon the State to prove an intent to injure. The charge was also objected to because it does not put this burden upon the State, appellant in his brief insisting that article 1009 of the Penal Code, which provides that when an injury is caused by violence to the person the intent to injure is presumed, is without application for the reason that appellant was an officer engaged in making an arrest and the injury inflicted in the exercise of this lawful purpose would not create the presumption named. See subdivision 5, article 1014, Penal Code. It is true that in making an arrest an officer may use reasonable means necessary, taking care that the force used is commensurate with the necessity. Skidmore v. State,
As the record is presented, we think there was no reversible error in rejecting the proffered testimony that the injured party had violated a traffic ordinance on some previous occasion.
The judgment is affirmed.
Affirmed.
Addendum
Our attention is called to the fact that this prosecution for a misdemeanor is begun by an indictment returned to the District Court of Garza County. That court being without jurisdiction to try the cause, the statute required that it should, by order of court, be transferred to a court having jurisdiction. Vernon's C.C.P., art. 483.
The record before us contains no order of the District Court transferring the case to the County Court, and the County Court being without power to receive an indictment from the grand jury, there is a failure in the record to show facts necessary to disclose the jurisdiction of the County Court to try the case. Richardson v. State, 122 S.W. Rep., 560; Harris v. State,
The motion for rehearing is granted, the affirmance set aside and the judgment is reversed and remanded.
Reversed and remanded.
