Gorman v. State

42 Tex. 221

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Moore, J.

If the minor children of the wife are recognized and treated as members of the family of their step-father, and are supported and maintained by him, there can be no doubt that- he stands to them in loco parentis, and may exercise the control and authority of a parent over them. On the other hand, we think it equally clear that the mother may interfere, by. force, if necessary to do so, to protect her child from cruel treatment, or wanton chastisement, or abuse, by either the step-father or father. Her right to interfere depends upon the fact whether the father has exceeded the just limits of parental authority in the extent and character of the chastisement which he is administering to the child. If he has, the wife, by interfering for the protection of the child, does not become an aggressor. And should the husband repel such interference by an assault upon the wife, he is in the wrong and must be regarded as the assailant, of the grade and character indicated by the acts and circumstances of the case.

If, however, the chastisement of the child does not exceed the just limit of parental authority, the interference of the mother would be unwarranted. And the father is fully justified in using all reasonable and necessary force to protect himself and to restrain and prevent her interference. But while it is impossible to indicate with critical and exact accuracy the precise amount and character of force and resistance which may be used by the father for his protection and defense, and to prevent the unwarranted interference of the wife and mother with the exercise and discharge of his parental authority and duty; still, if it clearly appears that the husband has assailed the wife not in his own defense, or to restrain her unwarranted interference, but to punish and correct'her for improper interference, then, also, he becomes an assailant, and is liable to be treated as a wrong-doer.

Whether the verdict in this case is justified by the facts, when tested by the law 0 applicable to them (if there was no discrepancy between the indictment and the evidence), need not be discussed by us at this time. For while we do not intend to undertake an analysis of the charge given, we think it quite evident that it presented a more restricted and limited view of the authority and control which appellant was authorized to exercise over his, step-child, than that given him by the law. And the charge of the court, as a whole, .was, in our opinion, calculated to divert the attention of the juiy from the true issues in this case. On the other hand, the first and second instructions asked by appellant, are equally calculated to mislead the jury, and, as asked, were unwarranted by the evidence.

The indictment did not charge that appellant was an “ adult male.” Evidently, therefore, the only ground upon which he could be convicted of an aggravated assault, was, that the alleged assault was made with a whip. It was, therefore, improper for the court to instruct the jury, as in effect it did, that, they were authorized to find him guilty of an aggravated assault, if he was an adult male, and had made an assault upon a female.

If, however, the charge of the court was strictly accurate in every particular, we would be compelled to reverse the judgment, upon the ground that it is not sustained by the evidence', The indictment charges appellant with making an assault upon Ma/rtha Gorman ; the proof shows that the alleged assault was upon Mary Gorman. As no notice was taken by counsel of this discrepancy in the record, between the indictment and statement of facts, it may be that it is the result of inadvertence or carelessness in preparing the transcript. The judgment of the court, however, cannot depend on speculations or probabilities as to the correctness or accuracy of the transcripts upon which we are required to act. If they are erroneous it is the duty of the parties- interested in, or to be affected by them, to point out their errors, and to take the proper steps for their correction. When this is not done, evidently the court must treat, and act upon them, as being in all things correct, as certified by the clerk.

The judgment.is reversed and the cause remanded.

Reversed and remanded.