Court of Civil Appeals of Texas, 1877

A. & E. Dunman v. State

A. & E. Dunman v. State
Court of Civil Appeals of Texas · Decided July 1, 1877 · Ector
1 Tex. Ct. App. 593

A. & E. Dunman v. State

Opinion of the Court

Ector, Presiding Judge.

In this case Andy Dunman, *596John Dunman, Thomas Hines, Henry Barrow, John Horn-singer, Edward Dunman, Cussy Hornsinger, and Mary Dunman were indicted in the criminal district court of Harris county, charging them with an aggravated assault and battery upon Julia Dunham. Appellants, Andy Dun-man and Edward Dunman, were tried together, convicted of an aggravated assault and battery, and fined $250 each.

The only errors complained of in the record are: 1st.. That the verdict of the jury is contrary to the law and the evidence. 2d. That the court erred in that part of the charge embodied in the bill of exceptions which reads as follows: “If an assault and battery is committed by a female, or by females, upon a female, unless great bodily injury is inflicted, or deadly weapons are used, so as to come within the rule laid down, it is not an aggravated assault and battery as to the females; but if adult males are present;, urging the assault and battery, aiding, advising, or assisting, and preventing interference for the protection of the party assaulted, exhibiting deadly weapons in a threatening manner, such adult males would be guilty of an aggravated assault and battery.” To which charge of the court the appellants, by their counsel, excepted upon the ground “ that it authorized the jury to find the defendants guilty of a higher and different offense than that with which the principal offender in this indictment is charged, to wit, simple assault and battery.” By a reference to the indictment it will be seen that all the defendants in the case are charged therein with an aggravated assault and battery committed upon Julia Dunham. We have not been favored with any brief on the part of appellants.

It would seem from the exceptions taken to the charge of the court, and from the grounds set forth in their motion for new trial, that the appellants hold that those who aided and abetted could not, in law, be guilty of a higher offense than those who struck the blows—called by the appellants *597££ principal offenders.” The testimony in the record shows that all the parties charged in the indictment are principal -offenders.

When one party assaults another and strikes him a blow, and other persons are present, acting together with him in the commission of the offense, they are principals. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts, or encourage by words or gestures, those actually engaged in the commission of the offense, such persons so aiding or encouraging are principal offenders, and may be prosecuted and convicted as such, and a blow by one is, in law, a blow by each and by all of them.

In this case the proof shows that unlawful violence was inflicted upon a woman; that appellants, who were adult males, were present in the unmanly character of principals, and every stroke given to Julia Dunham by the female -defendants was a blow given by appellants ; and certainly the appellants are guilty of an aggravated assault and battery, though their female co-defendants should be guilty of a simple assault and battery.

If the court committed any error in its instructions to the jury—which we do not decide—it was in this, that the charge as given to the jury was too favorable to the female defendants. If a woman attack another woman, using unlawful violence upon her, but not of an aggravated nature, as -defined by the statute, it would be a simple assault and battery. But if the same woman combine and confederate with adult males in making an assault upon a-woman—the females to strike the blows, the men to be present aiding ■and encouraging them in the assault and battery, and with deadly weapons preventing the husband of the party assaulted to come to the protection and relief of his wife— then it might with much force be insisted that the offense as to the females is at once raised to the grade of an aggravated *598assault and battery. Nor can adult males, by procuring .females as the instruments of their violence upon a woman, being present when the offense is committed, thus escape the penalty of an aggravated assault. The verdict of the jury and the judgment in the case is supported by the law .and the evidence:

The judgment is affirmed.

Affirmed.

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