Burns v. State , 23 Tex. Ct. App. 641 ( 1887 )

Hurt, Judge.

Appellant was convicted of an aggravated assault, the ground of aggravation being, as alleged in the information, that the assault was committed with a deadly weapon.

At the request of the county attorney, the court submitted to the jury certain instructions, some portions of which seem more in the nature of an argument for the prosecution than a statement of the law. In another portion the jury are instructed that “the use of any dangerous weapon, or the semblance thereof, in a threatening manner, with intent to alarm, and under circumstances calculated to effect that object, comes within the meaning of an assault, and is an assault.” Now, while the above facts may “come within the meaning of an assault,” they certainly do not come within the allegations of the information, and hence no such instruction should have been submitted to the jury, because wanting in allegations. But there was no exception taken to the charge, and, this being a case of misdemeanor, we will not reverse for these errors.

Appellant proposed to prove by several witnesses that he stated to them the purpose for which he was going to the house of the prosecutrix. Under the facts of this case, though not in all cases, we are clearly of the opinion that this evidence was competent.

Appellant proved that, as a peaceable, orderly and law abiding citizen, his character was good. In rebuttal, over objection, the State proved by Sergeant John William Ennees, that since January 15, 1885, he, as first sergeant, knew the general character of the defendant in the company; that he was in his company, and that he, witness, kept a record as a soldier; it was not good; he, defendant, was in the habit of being absent without leave, drinking and gaming. And further: “I know nothing of this case; my record is as to his character as a soldier.” Neither the sergeant’s record nor his oral testimony was competent.

Opinion delivered June 18,1887.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.