Hall v. State , 1884 Tex. Crim. App. LEXIS 58 ( 1884 )

Willson, Judge.

There are three counts in the indictment, each charging an aggravated assault and battery. First, that the defendant, an adult male, committed an assault and battery upon a female; second, that the defendant, a person of robust health and strength, committed an assault and battery upon a decrepit person; and third, that he went into the house of a private family and committed the assault and battery.

A general verdict of guilty of an aggravated assault was rendered upon this indictment, without specifying upon which of the three counts it was based. As to the first count, it is not sustained by, but is contrary to the evidence. An adult is a person who has attained the full age of twenty-one years. (Schenault v. The State, 10 Texas Ct. App., 410.) It was proved by the testimony of defendant’s father positively that at the time of the trial the defendant was not twenty-one years old. There was no evidence contradicting, or tending to contradict this proof, except that of the alleged injured female, who testified that she thought the defendant was twenty-one years old. She did not state that she knew his age, nor does it appear that in testifying about it she had reference to the time of the alleged offense, or to the time of the trial. Besides, the mere opinion or belief of this witness cannot be regarded as evidence in contradiction of the positive testimony of the defendant’s father, who, it must be presumed, knew the age of his own son.

As to the second count, while the evidence might be held sufficient to establish the allegation that the defendant was a person of robust health and strength, it was not sufficient to prove that the alleged assaulted party was decrepit. She was not an aged person, being only thirty-seven years old. Mr. Webster defines “aged” as follows: “Old; having lived long; having lived -almost the usual time allotted to that species of being.” The usual allotted time for human beings to live, prescribed by revealed law, and in accord with the law of nature, is the period of three score years and ten. It is not alleged in the indictment, however, that the lady was an aged person, but that she was decrepit, and we must therefore direct our attention to this specific allegation.

What meaning are we to give the word decrepit? Words used in the Penal Code, except where specially defined by law, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed. (Penal Code, Art. 10.) Mr. Webster makes the word “decrepit” a dependant of old age; that is, according to his definition, be-, fore a person can be decrepit old age must have supervened upon such person. He defines the word thus: “Broken down with age; wasted or worn by the infirmities of old age; being in the last stage of decay; weakened by age.” This word is not defined in the Code, nor do we find any definition of it in the law lexicographies. In our opinion, as used in Article 496 of the Penal Code, and as commonly understood in this country, it has a more comprehensive signification than that given it by Mr. Webster. We understand a decrepit person to mean one who is disabled, incapable or incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render the individual comparatively helpless in a personal conflict with one possessed of ordinary health and strength. We think that, within the meaning of the word as used in the Code, a person may be decrepit without being old-, otherwise the use of the word in the Code would be tautology. It certainly was intended by the Legislature that it should signify another state or condition of the person than that of old age. Thus, where the party assaulted was a man about fifty years old, disabled by rheumatism to such an. extent that he was compelled to carry his arm in an unnatural position, and in such a manner as to render it almost if not entirely useless to him in a personal difficulty, it was held that, whilst his condition might not come technically within the meaning of the word decrepit as defined by Mr. Webster, yet it might with propriety be said that it fell in the measure of that word as used in common acceptation. (Bowden v. The State, 2 Texas Ct. App., 56.)

But, giving to this word its broadest meaning, we do not think that the proof in this case shows that the alleged injured person was decrepit. She testifies herself that she had been sick off and on during the summer, and that she had been in bed all day the day of the difficulty. It is not shown what was the character of her sickness, or what effect it had produced upon her. On the other hand, it was proved that on the evening of the difficulty, and at the time of its occurrence, she was up and going about the house; that just before she was assaulted by the defendant she had gone up stairs and thrown his trunk of clothes out of the house through a window, and had also thrown his satchel out of the house. It was further proved that before defendant struck or attempted to strike her she struck him with a chair. Considering all the testimony upon this question, we are of the opinion that it fails to show that the lady, at the time of the alleged assault upon her, was in a decrepit condition within the meaning of the law. Therefore the conviction cannot he sustained under the second count.

As to the third and last count, the learned judge, in his charge, did not submit the issues under it the jury. He instructed the jury as to the first and second counts only, saying nothing whatever as to the third. As this last count was not submitted to the jury, we must presume that the verdict was not based upon it, but upon one or the other, or both, of the preceding counts. We think the court very properly omitted to submit this third count to the jury, because, in our opinion, the evidence did not warrant its consideration. It was shown by the evidence that the alleged assault took place in the house of defendant’s father, in the common -ffting room of the family, and that the defendant at the time was "u occupant of the house and a member of the family. We do not think that subdivision 3 of Article 496 of the Penal Cone applies to such a case. We do not believe that it was intended to make an assault and battery aggravated when committed by a person in his own house. We think the object of this provision is to protect private familes from the intrusion into their houses, and assaults made therein, by persons who are not members of the family, and who have no legal right to be upon the premises without the consent of the owner thereof.

We find in the record numerous bills of exceptions and assignments of error which we do not think it necessary to notice in this opinion. The questions presented are not of general importance, and are of a character that may, by proper investigation and effort on the part of the court and the counsel in the case, be avoided on another trial.

Because in our opinion the verdict of the jury is not supported by the evidence, the judgment is reversed and the cause remanded.

.Reversed and remanded„

Opinion delivered April 16, 1884.