Webb v. State , 36 Tex. Crim. 41 ( 1896 )

Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $500, and one year's imprisonment in the county jail; and from the judgment of the lower court he prosecutes this appeal. Appellant made a motion in arrest of judgment, on the ground that the information in this case does not charge an offense. The charge in the information, that "J.W. Webb, an adult male, did then and there commit an aggravated assault and battery in and upon A.L. Webb, a female," sufficiently charges an aggravated assault, and the further charge in the information as to how said assault was committed, may be rejected as surplusage. However, there is nothing, as it occurs to us, erroneous in having stated the means by which the alleged assault was committed, and there appears no variance in the proof; and it was not necessary to allege the name of the other party who may have acted with the defendant in this case as a principal. See, Mayo v. State, 7 Tex.Crim. App., 342; Cudd v. State, 28 Tex.Crim. App., 124, and authorities there cited. Appellant also assigns as error, that the court permitted the State to prove, over his objection, that he had previously been married and divorced as many as four times. Appellant objected to this testimony, and, on its admission, reserved his bill of objections thereto. It appears from the record in this case, that it was a part of the State's case to prove that the appellant caused one McWaters, to get in bed with his wife, and attempt to have carnal intercourse with her, for the purpose of having a ground for divorce. All testimony bearing upon this issue was legitimate, but we fail to see how evidence that the defendant had been previously married to other women, and had been divorced from them, could have any bearing upon the issue in this case. If evidence in regard to the other divorces was admissible at all, it would have been competent to have gone into the details, to have ascertained the right or wrong of the defendant in such cases. This would involve, to a great extent, a trial of such other cases, and such other cases had no more bearing upon this case than proof that the defendant had previously been involved in a number of assault and battery cases. It cannot be said, in the light of the verdict in this case, that such testimony was immaterial. The jury assessed a fine of $500, and a year's imprisonment, against the defendant; and we cannot say but that the facts proved, that the defendant had married a number of other women, and secured divorces from them, may not have prejudiced the defendant in the eyes of the jury, and caused them to inflict greater punishment than they would otherwise have done. For the error of the court in admitting this testimony, the judgment is reversed and the cause remanded.

Reversed and Remanded.