Kemp v. State , 25 Tex. Ct. App. 589 ( 1888 )

Willson, Judge.

This conviction is for an aggravated assault and battery, under an information which charges as follows: “That Phil Davis, Sinday McIntosh (or McIntyre), Lou Kemp, Sarah Lowe and Emma Massengil, late of the county of Robertson, on the twenty-eighth day of March, A. D. one thousand eight hundred and eighty-seven, with force and arms, in the county of Robertson, and State of Texas, then and there acting together, in and upon the person of Susan Garrett, did then and there commit an aggravated assault and' battery, by then and there striking and beating said Susan Garrett with their hands and fists, and by then and there pulling and tearing the clothes off of the person of said Susan Garrett with intent to injure her, the said'Phil Davis then and there being an adult male person, and the said Susan Garrett then and there being a female person,” etc.

Defendant made a motion in arrest of judgment, one of the grounds of which is as follows: “Because the affidavit and information are insufficient to charge this defendant, Lou Kemp, with any higher grade of offense than a simple assault and battery, because said affidavit and information do not charge any circumstance or means of aggravation against this defendant, as mentioned and defined in article 496 of the Penal Code.” Said motion was overruled, and counsel for the defendant has ingeniously and ably presented this ground of objection before this court, insisting that the mere fact that a woman joins an adult male person in the commission of an assault upon a female does not render the woman joining in its commission guilty of an aggravated assault; that she would only be guilty of a simple assault, while the adult male would be guilty of an aggravated assault. When considered with reference to the sufficiency of the information, we do not agree to the proposition stated.

All who are present and participating in an assault are principals, and a blow by one is a blow by each and all of them. It is alleged in the information that the defendants anted together in the commission of an aggravated assault upon the woman, one of said defendants being an adult male person. If under any state of facts the acting together with the adult male in the commission of the assault would make the woman guilty of an aggravated assault, then the information is sufficient, and the question as to her guilt of aggravated assault becomes one of proof and not of pleading. How, suppose the defendant, knowing that Phil Davis was an adult male person, combined and confederated with him to make an assault upon the injured woman, and in pursuance of such conspiracy they together-made the assault, or Phil Davis made the assault in fact, and the defendant was present instigating, encouraging or in any way aiding him in the commission of such assault, would she not be equally guilty with Phil Davis? We think she would, and such was the view entertained by this court in the somewhat similar case, of Dunman v. The State, 1 Texas Court of Appeals, 593. So we think if a woman, however feeble she might be, should act together with a person of robust health and strength in the commission of an assault upon one who is aged or decrepit, she might be guilty of an aggravated assault, although the assault was in fact committed by her co-wrong doer. So, if one in disguise should commit an assault and another not in disguise should act together with the disguised person in committing the offense, knowing of such disguise, both would be guilty of an aggravated assault. We hold, therefore, that the information charges an aggravated assault and battery against the defendant Lou Kemp, and that the motion in arrest was properly overruled.

We are of the opinion, however, that the evidence does not sustain the conviction of aggravated assault and battery, In the first place, it was not proved that Phil Davis was, at the time of the alleged assault, an adult male person. It was proved that he was a male person, but there is not a particle of evidence in the record before us that he was an adult male. His age was not shown by either direct or circumstantial evidence. Secondly, the facts do not show thait the defendant acted together with Phil Davis in the commission of the alleged assault. Phil Davis interfered in the melee of his own accord, without being invited to do so by the defendant, and, so far as his acts are concerned, they seem to have been in no way encouraged, agreed to or participated in by the defendant, A woman is in the act of committing a simple assault and battery upon another female^ an adult malé person, without' solicitation upon the part of the assaulting woman—without, perhaps, her fcnowiedge-^-mtrades himself into the difficulty and joins in the assault, in such ca,se the assaulting woman certainly can not be held answerable for the acts of the adult male, in which she does not concur. Her liability as principal in such case is determined, not by the acts and intent of the adult male, but by her own act and intent. (Guffee v. The State, 8 Texas Ct. App., 187.)

Opinion delivered June 16, 1888.

In this case the evidence, at most, shows that the defendant was guilty of a simple assault and battery, and was not responsible for the acts of Phil Davis. Such being the case, the defendant’s plea of former conviction for such simple assault and battery was sustained by the evidence and should have prevailed, and the defendant should have been acquitted. Without noticing other matters assigned as error, the judgment is reversed and the cause is remanded, because the conviction is contrary to the evidence and the law.

Reversed and remanded.