McGaughey v. State

64 S.W.2d 777, 125 Tex. Crim. 69, 1933 Tex. Crim. App. LEXIS 625

Opinions

MORROW, Presiding Judge.

The offense is simple assault; penalty assessed at a fine of ten dollars.

It is charged that the appellant committed an aggravated assault and battery upon the person of Jewel Boyd by going into the house of a private family, to-wit: that of Jewel Boyd and his wife, Lela Boyd, and then and there committed an assault and battery upon the person of Jewel Boyd, by striking him and pulling his hair. See P. C., article 1147.

The evidence heard in the trial court is not brought up for review.

A jury was waived and the trial was had before the court upon a plea of not guilty.

In bill of exception No. 1 the contention is advanced that there is a material variance in that the evidence showed that the assault took place at the home of Jewel Boyd; that it occurred in the yard instead of in the house as averred in the complaint. The trial court does not verify this statement of fact. However, we are aware of no principle or precedent which would sustain the contention that the alleged fact would constitute a material variance in view of the verdict reducing the offense to simple assault. The same point in like manner is presented in Bill No. 2.

Bill No. 8 reflects the appellant’s complaint of the ruling of the court in receiving in evidence the declaration of the witness, Margaret Robison. The absence of the statement of facts renders it impossible for this court to appraise the complaint in the bill.

Bill No. 4 likewise relates to the ruling of the court in the reception of evidence. The complaint cannot be sustained for the reason heretofore indicated that this court is without knowledge of the facts that were before the trial judge.

The judgment is affirmed.

Affirmed.