Schultz v. State , 137 Tex. Crim. 164 ( 1939 )

Appellant complains in his motion because of the fact that the complaint and information allege that he "* * * did then and there commit an aggravated assault in and upon the person of Ruth Cerventes by then and there willfully and with negligence colliding with and causing injury to the person of Ruth Cerventes. * * *" The complaint being based upon the proposition that the statute provides that one is guilty of an aggravated assault who "collides with or causes injury," etc., the offending portion of the complaint and information being the use of the word "and" in place of the word "or"; that is, the pleading being in the conjunctive and the statute being in the disjunctive, that the same charges no offense against the law. We are referred to the case of Tarver v. State,83 Tex. Crim. 275, as an authority for such proposition. In our opinion that case does not warrant such a reference. It does hold that the proper pleadings demanded that there should have been an allegation that the accused should have been charged with either willfully colliding with the injured party, or with gross negligence colliding with such party, but it goes further and holds that either or both of such allegations would have been proper, but in the Tarver case neither allegation was found in the pleading. That case goes still further and says: "We have a rule, however, that where the statutory words are not followed in the pleading that those employed must be of equal or greater significance than those employed in the statute." We have heretofore held that an information and complaint in this exact language was correct in the case of Young v. State, 47 S.W.2d 320. See also Huff v. State,58 S.W.2d 113, and cases there cited.

We are also of the opinion that the facts support the allegation that not only did he, appellant, collide with the injured party, but also that he caused an injury to her. The statute means that such collision should be made with an automobile. It can be made by either striking the person injured on his body, or by striking such person's automobile and causing the same to strike the body of the injured person, the intervening agency of the automobile collided with being but a further agency employed in the commission of the offense.

We find two affidavits relative to the testimony of a certain witness in this case. These will not be considered by us. We can not try this case on belated affidavits, presented in this Court on appeal for the first time.

The motion will be overruled.