Kinnard v. State

Court of Criminal Appeals of Texas

Kinnard v. State

33 S.W. 234, 35 Tex. Crim. 276, 1895 Tex. Crim. App. LEXIS 272

CourtCourt of Criminal Appeals of Texas

DecidedNovember 6, 1895

DocketNo. 1112.

StatusPublished

Cited by4 cases

This text of 33 S.W. 234 (Kinnard 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.

Bluebook

Kinnard v. State, 33 S.W. 234, 35 Tex. Crim. 276, 1895 Tex. Crim. App. LEXIS 272 (Tex. 1895).

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Opinions

HENDERSON, Judge.

The appellant was convicted of an aggravated assault, and his punishment assessed at a fine of 825, and from the judgment of the lower court he prosecutes this appeal. There is nothing in appellant’s motion to quash the information, and the court did not err in overruling same. The information, in proper terms, charged an aggravated assault, the alleged aggravation consisting in an assault by an adult male uj>on a child; and the allegation that it was committed with switches is a charge of the means used, and the only effect of this was to confine the state to the proof of the means so charged. The objection urged by appellant that the State could not prove that the assault was so severe as to cause the blood to flow from the assaulted party appears to us to be frivolous. The severity of the assault, and the injuries inflicted by appellant, properly went before the jury, in order to enable them to graduate the punishment which they might inflict. And such evidence became exceedingly pertinent and necessary, in view of the defense set up to-wit: that appellant was a school teacher, and had a right to chastise the prosecutor, who was his pupil. What appellant told J. S. Abbott in regard to the whipping of the prosecutor was some thirty minutes after said whipping, and the appellant had in the meantime engaged in other employment, and such statements were no part of the res gestae, but were self-serving, and were properly excluded. In the face of the proof in this case, which was overwhelming as to the severity of the whipping inflicted by appellant,—some of the witnesses stating that appellant cut the blood out of as many as nine places on the prosecutor’s legs,—we fail to see how proof of the appellant’s intention, which he proposed to prove, would have availed him. See Penal Code, Art. 50. Under the evidence in this case, it occurs to us that the j ury was exceedingly lenient, as they only fined the appellant 825 for having inflicted a most outrageous whipping on a small boy, who is not shown to have offered the least resistance, or done anything' at the time calculated to cause appellant to forget his duty and use more force than the law warranted, in exercising moderate restraint and correction over his scholars. There appearing no error in the record, the judgment is affirmed.

Affirmed.

Davidson, Judge, absent.

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HENDERSON, Judge.

The appellant was convicted of an aggravated assault, and his punishment assessed at a fine of 825, and from the judgment of the lower court he prosecutes this appeal. There is nothing in appellant’s motion to quash the information, and the court did not err in overruling same. The information, in proper terms, charged an aggravated assault, the alleged aggravation consisting in an assault by an adult male uj>on a child; and the allegation that it was committed with switches is a charge of the means used, and the only effect of this was to confine the state to the proof of the means so charged. The objection urged by appellant that the State could not prove that the assault was so severe as to cause the blood to flow from the assaulted party appears to us to be frivolous. The severity of the assault, and the injuries inflicted by appellant, properly went before the jury, in order to enable them to graduate the punishment which they might inflict. And such evidence became exceedingly pertinent and necessary, in view of the defense set up to-wit: that appellant was a school teacher, and had a right to chastise the prosecutor, who was his pupil. What appellant told J. S. Abbott in regard to the whipping of the prosecutor was some thirty minutes after said whipping, and the appellant had in the meantime engaged in other employment, and such statements were no part of the res gestae, but were self-serving, and were properly excluded. In the face of the proof in this case, which was overwhelming as to the severity of the whipping inflicted by appellant,—some of the witnesses stating that appellant cut the blood out of as many as nine places on the prosecutor’s legs,—we fail to see how proof of the appellant’s intention, which he proposed to prove, would have availed him. See Penal Code, Art. 50. Under the evidence in this case, it occurs to us that the j ury was exceedingly lenient, as they only fined the appellant 825 for having inflicted a most outrageous whipping on a small boy, who is not shown to have offered the least resistance, or done anything' at the time calculated to cause appellant to forget his duty and use more force than the law warranted, in exercising moderate restraint and correction over his scholars. There appearing no error in the record, the judgment is affirmed.

Affirmed.

Davidson, Judge, absent.

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33 S.W. 234, 35 Tex. Crim. 276, 1895 Tex. Crim. App. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinnard-v-state-texcrimapp-1895.

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