123 S.W. 141 | Tex. Crim. App. | 1909
Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $100.
1. Appellant insists in his motion for a new trial the court erred in failing to charge on alibi. This issue is not suggested by the evidence.
2. Appellant complains that the foreman of the jury was much prejudiced against the defendant, he being related to the bitter enemy of the defendant as shown by the affidavit of Mrs. Woodland attached hereto and made a part of this motion. There is nothing in the affidavit that suggests any legal prejudice against defendant. These are matters that could have been inquired into by the appellant before the juror was taken upon the jury.
3. Appellant complains the court erred in not granting him a new trial because of the newly discovered evidence of Mr. Greathouse as shown by affidavit attached, which affidavit reflects upon the character of prosecutrix, and in which affidavit the affiant swears the prosecutrix's *354 general reputation for virtue and chastity in the community where she lived was bad. This evidence would not come within the rule authorizing a new trial on the ground of newly discovered evidence, since it could have been discovered by the exercise of due diligence. Furthermore, it is impeaching in its character.
4. Appellant further complains the court misdirected the jury as to the punishment. The charge complained of is as follows: "The punishment for an aggravated assault and battery is by fine not less than twenty nor more than one thousand dollars, or by imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment." In a subsequent portion of the charge, in applying the law to the facts, the court correctly stated the minimum penalty to be $25. This certainly cures any possible error in the court's charge. See Choran v. State, 49 Tex.Crim. Rep., 92 S.W. Rep., 422; Sexton v. State, 49 Tex.Crim. Rep., 92 S.W. Rep., 37; Lovejoy v. State, 40 Tex.Crim. Rep., 48 S.W. Rep., 521; Leal v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 961; Parker v. State, 43 Tex.Crim. Rep., 67 S.W. Rep., 121; Stokes v. State, 49 Tex.Crim. Rep., 90 S.W. Rep., 179.
5. Appellant insists the evidence is insufficient to support the verdict. The evidence is ample, and the charge of the court is correct.
The judgment is in all things affirmed.
Affirmed.
