Blackwell v. State , 30 Tex. Ct. App. 416 ( 1891 )

DAVIDSON, Judge.

Appellant was convicted of aggravated assault and fined $500. Motion in arrest of judgment was urged against the information, because it failed “to state the assault was committed in a-place of religious worship;” that it used the language, “at Hickory Grove School House.” The basis of the motion is the alleged insufficiency of the word “at” to convey the meaning of the statutory word “in,” contained in the second subdivision of article 496 of the Penal Code. That portion of the statute defines an aggravated assault to be such “when committed in a court of justice, or in any place of religious worship, or in any place where persons are assembled for the purpose of innocent amusement.” Penal Code, art. 496, subdiv. 2.

Our Code of Procedure provides, that “words used in a statute to define an offense need not be strictly pursued in the indictment. It is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” Code Crim. Proc., art. 428o. The words “in” and “at” are not defined in our codes. They therefore have the same meaning attached to them as commonly understood. These two words, however, have been frequently the subjects of legal adjudication. The word “at” has been held equivalent to “in,” or “within” to “in,” or “near” to “into.” In Louisiana it was held, that “at the parish of Caddo” was equivalent to “in the parish of Caddo.” The State v. Nolan, 8 Rob. (La.), 517. In this State the expression “at the county” was held equivalent to “in the county.” Augustine v. The State, 20 Texas, 450. Mr. Bishop says it is immaterial whether “in” or “at” is used in the allegation of place in an indictment. 1 Bish. Crim. Proc., sec. 378. See, also, 1 Am. and Eng. Encyc. of Law, p. 890; 10 Am. and Eng. Encyc. of Law, p. 322. The nse of the word “at” for “in” in alleging place in the information does no violence to the meaning or language of the statute under which it was framed. We are of opinion the information is a valid one. Willson’s Crim. Forms, No. 347.

The evidence shows the assault to have been committed upon the minister in a congregation of people assembled for religious worship, and pending such services. The congregation were assembled under a brush arbor, a few steps from the school house. This arbor seemed to have been constructed for the purpose of being used in cases of emergency, and in connection with and as part of the school house, and was being so used at the time for the purpose of carrying on a protracted service. Because the religious services were not being conducted in the house, but under the arbor, it is contended that there is a variance between the allegations in the information and the proof advanced. The same question was presented by special requested instructions, which were refused by the court. We are of opinion that the rulings of the court were correct in overruling the objections to the evidence as well as refusing to give the requested charges. The evidence sufficiently corresponds td the allegations in the information, and does not constitute a variance.

Moreland, a witness for the prosecution, was asked by defendant’s counsel if he knew defendant’s general reputation for being a peaceable, quiet, law-abiding citizen in the neighborhood where he resided. He replied that he did, and it was good. ' The State’s counsel then inquired if he had ever heard of defendant disturbing religious worship before. This was objected to by defendant, but the witness replied before the court ruled on the objection, and his reply was in the affirmative. The court then said in the presence of the jury that both answers were inadmissible, and should not be considered by the jury. The previous trouble of the defendant in disturbing religious worship was testified to by himself; therefore, any supposed error in this respect was waived. We are of opinion that the court did not err in excluding the evidence of reputation, for, if error at all, it was harmless, under the facts of this case, inasmuch as the defendant admitted the commission of the act charged.

The court charged the jury properly with reference to the penalty, and then proceeded to tell them, “If you find the defendant guilty and assess his punishment at a fine only, the form of your verdict will be, 'We, the jury, find the defendant E. Blackwell guilty as charged, and assess his punishment at a fine of $500,’ filling in the amount agreed upon.” The verdict was for the sum of $500. There are two inconsistent penalties stated in the charge, the one correctly presenting the law, while the other states a penalty unknown to the law. The statute does not prescribe a penalty of $500 as the punishment of aggravated assault. We are of opinion this is such error as requires a reversal of the judgment. We are asked also to reverse the judgment because the verdict was excessive and cruel. We will not discuss the evidence, but will say that we do not agree with counsel for appellant.

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

Reversed and remanded.

Judges all present and concurring.