Kinnard v. State

on rehearing.

At a former day of this term this case was affirmed, and it now comes before us on motion for rehearing. We have carefully considered the grounds set up in the motion, and in our opinion none of them are tenable, except that which is set up in appellant’s ninth bill of exceptions. Said bill brings in review the refusal of the *279 court to permit the appellant to testify as to his intention at the time of inflicting the corporal punishment upon Owen Plummer, who was his pupil; the appellant proposing to show by his own testimony that it was not his intention to whip Plummer severely, but that his object was merely to inflict moderate corporal punishment. In the opinion heretofore rendered in this case, we held that, in view of the testimony in the case, it was immaterial what his intention was. Upon a more critical examination of the question, however, we believe we were in error in so holding. The appellant was entitled to this testimony, in view of the peculiar facts of this case; and, whether it was worth much or little, he had a right to have the court consider his testimony as to his intention at the time. As a school-teacher, he had the right to inflict moderate corporal punishment upon the prosecutor, Owen Plummer, for sufficient cause, and his intent and purpose in inflicting such punishment were material. The authorities hold that he could testify as to such intent. Berry v. State, 30 Tex. Crim. App. 423; 9 Crim. Law Mag. p. 166, and authorities there cited. For the error committed by the court in rejecting this testimony, a rehearing is granted, and the cause is reversed and remanded.

Reversed and Remanded.

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.