Prine v. State

41 Tex. 300 | Tex. | 1874

Roberts, Chief Justice.

It would have been proper for the court to have permitted the special pleas of defendants to have been submitted to the jury with the plea of “ not guilty.” (Pas. Dig., art. 2972.) If the jury should have found them guilty of a simple assault and battery only, according to their view of the evidence, then they could have been acquitted under their special pleas. But as the jury found the defendants guilty of an aggravated assault and battery, that being an offense of which the justice of the peace had no jurisdiction, their special pleas would not have availed the defendants as a defense in this case, and consequently they suffered no injury by their special pleas of auterfoits acquit and convict being overruled and excluded by the court.

The exclusion of the evidence of Mrs. Prine, in reference to the insulting words and conduct of the party assaulted on the day previous to the attack on him by defendants, was not error, because it did not constitute a justification, and, if admissible as a palliation, it was unnecessary, as the jury assessed the lowest possible fine for an aggravated assault and battery.

There is no evidence that Frank Smith struck any blows, but it is very plainly shown that he decoyed the victim, and was accommodatingly present to hold the gun while his confederate administered the punishment.

Affirmed.