Tracy v. State

44 Tex. 9

• Court: Texas Supreme Court
• Decided: July 1, 1875
• Status: Published

Opinion

Roberts, Chief Justice.

This is a conviction for an aggravated assault and battery by an adult male upon a female.

It is objected that there was no sufficient proof that the defendant was an adult male, and that the party beaten was a female.

It appears that the defendant appeared on the trial, and that the party beaten appeared and testified before the court and jury as a witness. In the statement of facts the defendant is spoken of as a man who kept a hotel and wore whiskers, and the party that was beaten, when spoken of as a witness, is called Haney Sheppard, whose given name is usually that of a female, and when therein designated as the person beaten is spoken of as “ she.”

When there is thus in open court a patent recognition by all the parties concerned in the trial of the existence of necessary facts, they may well be presumed to exist, unless the party interested in their non-existence should avail himself of the opportunity at the proper time to institute a more minute and searching investigation of the subject, for the purpose of rebutting the obvious appearances and assumptions.

Having failed in this, the defendant has no right to complain that the court and jury took for granted from the evidence adduced, both affirmative, negative, and inferential, the existence of the facts fully, which established that he was an adult male, and she a female.

There being no error, the judgment is affirmed.

Affirmed.