No. 961. | Tex. Crim. App. | May 6, 1896
Appellant was charged with having committed an aggravated assault on one Joe Powell, by cutting him with a knife and inflicting upon him serious bodily injury. The conviction was for a simple assault, and appellant was fined five dollars, Appellant urges two grounds why this cause should be reversed: (1) Because the evidence is insufficient to support a, conviction for any offense; and the appellant having been charged with an assault with a knife, the court evidently found him guilty of an assault with a stick, and such finding cannot be sustained under the information in this case. In regard to the last proposition, the rule is that, as the in indictment or information particularizes the transaction upon which the charge of an assault or assault arid battery is based, the proof must be confined to that *412 transaction, so particularized. If the proof shows that the assault, or assault and battery, was made with the knife, as charged, but fails to show that serious bodily injury was inflicted, a conviction for a simple assault and battery can be sustained. But to depart from the allegation contained in in the information or indictment, and convict on a transaction not, alleged or described in the indictment or information, is not permissible. The question, therefore, before us, is whether the the proof shows that the assault, or assault and battery, was made by the appellant with the knife. If not, this conviction cannot be sustained for a simple assault and battery. It appears from the statement, of facts that the altercation arose between the prosecutor and the appellant in regard to some supposed improper treatment or language used towards the children of the appellant; the prosecutor contending that be had received insults from the children of his neighbor (the appellant), and the appellant contending that, this was not true, and that when he mentioned the subject to the prosecutor the difficulty arose. The prosecutor states that he handed his child, whom he had in his arms, to his wife, and made at the defendant, "with the intention of inflicting a chastisement or a beating upon the defendant"; that when he got in reach of the appellant the appellant struck him with the stick. Appellant contends — and supports his contention, not only by his own testimony, but that of several witnesses — that the prosecutor rushed upon him, when the lie was passed between the parties, seized his stick, took it from him, and struck him several licks with the stick, whereupon the appellant fled, and was pursued by the prosecutor, and when he was overtaken he stab. bed him in self-defense. Now, it is evident that if appellant, notwithstanding the flight, had turned upon his adversary, and, not in his self-defense, inflicted the wounds with the, knife, the court could have found him guilty of an aggravated assault and battery, with the knife. The prosecutor was stabbed several times in the arm, disabling him, and causing him to remain in bed about a month. There is no doubt in our minds but that the court found the appellant guilty upon the testimony of the prosecutor that he struck him with the stick. This being the case, it was not, authorized by the allegations in the information. We are also of opinion that the great weight of the evidence in this case supports the theory of the defendant that he, if the aggressor originally, had clearly abandoned the difficulty, and was on the run, when over-taken by the prosecutor, and that he stabbed him in self-defense. That it was necessary in order to protect his life or person from serious bodily injury, there can be no question. The appellant was a much smaller man than the prosecutor, and had just recovered from an attack of flux, which had reduced his strength, and he was then very feeble. The prosecutor and his son and wife were all in pursuit of the appellant at the time he inflicted the wound with the knife. The judgment is reversed and the cause remanded.
Reversed and Remanded. *413