Blackburn v. State

39 Tex. 153

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Ogden, P. J.

The indictment in this case charges the defendant with having cohnmitted an assault and battery upon the person of Virginia Holt, a female. The appellant was tried and convicted of an aggravated assault and battery. He moved in arrest of judgment and for a new trial, which were overruled by the court, and he has appealed.

We think the indictment fails to charge an aggravated assault, and that the verdict and judgment for that offense are not authorized by the charge. The fifth clause of Article 2150, Pasch. Dig., provides that an assault becomes aggravated “when committed by an adult male upon the person of a female or child.” Under this clause of the statute, the assault alone, nor the assault upon the person of a female, are sufficient to constitute the aggravation, but it also requires an assault upon the person of a female by ‘an adult male. These three requisites must combine to constitute an aggravated assault, and they should all be distinctly alleged in the indictment in order to sustain the charge for an aggravated assault.

The indictment in this case clearly charges a simple-assault and battery, but is insufficient to sustain a judgment for an aggravated assault. The judgment of the District Court is therefore erroneous ; it must be reversed and the cause remanded.

Reversed and remanded.