Hartsell v. State

Court of Criminal Appeals of Texas

Hartsell v. State

116 S.W. 1159, 55 Tex. Crim. 389, 1909 Tex. Crim. App. LEXIS 90

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 24, 1909

DocketNo. 4595.

StatusPublished

Cited by5 cases

This text of 116 S.W. 1159 (Hartsell v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hartsell v. State, 116 S.W. 1159, 55 Tex. Crim. 389, 1909 Tex. Crim. App. LEXIS 90 (Tex. 1909).

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Opinion

BROOKS, Judge.

Appellant was convicted of aggravated assault and his punishment assessed at a fine of $575 and one year in the county jail.

Appellant’s only contention is, that the evidence fails to show that he is an adult male, the assault alleged being upon a female. The prosecutrix in her testimony in speaking of the appellant uses this language: "I know John Hartsell, the defendant, like any other boy, in passing.” Then in another portion of her testimony in speaking of the appellant she uses this language: “I saw the defendant the next day. I identified him as the man who assaulted me that night.” In the case of Davis v. State, 76 S. W. Rep., 466, in passing upon a similar question, will be found the *390 following language: "We are not authorized to indulge any presumption against appellant. If he is convicted of any offense, it must be .upon evidence; and here we find no evidence to sustain the fact that he was an adult male, either of a positive or circumstantial character.” In this case we have the prosecuting witness speaking of appellant as a boy in one place and a man in another place. The word “boy” is always applied to a male person under twenty-one years of age. "Man” is a noun used to designate one over twenty-one years of age. For a discussion of similar questions see Davis v. State, 6 Texas Crim. App., 133; Gaston v. State, 11 Texas Crim. App., 143; Tucker v. State, 43 S. W. Rep., 106. An examination of the last cited authorities, however, will not support the proposition that the evidence in this case conclusively establishes the fact that the appellant was an adult male. We accordingly hold that the evidence does not do so. In other words, from the record before us we can not tell -whether appellant is a hoy or man. By the record alone we are governed. If appellant is a boy, then it' could not he aggravated assault. If he is a man it could. The record on this question ought to have been made more explicit. We are not authorized to indulge presumptions against appellant, but must pass upon the case on the record as made. This being true, the evidence failing to support the issue of aggravated assault on the ground that appellant was an adult male, the judgment is reversed and the cause remanded.

Reversed and remanded.

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BROOKS, Judge.

Appellant was convicted of aggravated assault and his punishment assessed at a fine of $575 and one year in the county jail.

Appellant’s only contention is, that the evidence fails to show that he is an adult male, the assault alleged being upon a female. The prosecutrix in her testimony in speaking of the appellant uses this language: "I know John Hartsell, the defendant, like any other boy, in passing.” Then in another portion of her testimony in speaking of the appellant she uses this language: “I saw the defendant the next day. I identified him as the man who assaulted me that night.” In the case of Davis v. State, 76 S. W. Rep., 466, in passing upon a similar question, will be found the *390 following language: "We are not authorized to indulge any presumption against appellant. If he is convicted of any offense, it must be .upon evidence; and here we find no evidence to sustain the fact that he was an adult male, either of a positive or circumstantial character.” In this case we have the prosecuting witness speaking of appellant as a boy in one place and a man in another place. The word “boy” is always applied to a male person under twenty-one years of age. "Man” is a noun used to designate one over twenty-one years of age. For a discussion of similar questions see Davis v. State, 6 Texas Crim. App., 133; Gaston v. State, 11 Texas Crim. App., 143; Tucker v. State, 43 S. W. Rep., 106. An examination of the last cited authorities, however, will not support the proposition that the evidence in this case conclusively establishes the fact that the appellant was an adult male. We accordingly hold that the evidence does not do so. In other words, from the record before us we can not tell -whether appellant is a hoy or man. By the record alone we are governed. If appellant is a boy, then it' could not he aggravated assault. If he is a man it could. The record on this question ought to have been made more explicit. We are not authorized to indulge presumptions against appellant, but must pass upon the case on the record as made. This being true, the evidence failing to support the issue of aggravated assault on the ground that appellant was an adult male, the judgment is reversed and the cause remanded.

Reversed and remanded.

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116 S.W. 1159, 55 Tex. Crim. 389, 1909 Tex. Crim. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartsell-v-state-texcrimapp-1909.

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