Jordan v. State

DAVIDSON, Presiding Judge.

Appellant was convicted of an aggravated assault, his punishment being assessed at a fine of $50.

The evidence discloses that the alleged assault was committed by appellant upon his wife. The State’s evidence is contradictory in regard to the occurrence, one witness testifying he was passing the home of 'appellant and his wife and saw appellant run out of the house chased by his wife. The testimony of this witness, as we view it, would not entitle the State to a conviction. Two other witnesses for the State testify they were passing the same place and saw appellant’s wife come out behind appellant; that they were moving rather rapidly, and upon reaching a certain point appellant had his wife on the ground, and struck her on the head with a stick or club. The testimony of appellant and his wife is to the effect that there was no ill-feeling between them; that while she was cooking breakfast ap pellant went to his mother’s and stayed awhile. After breakfast was prepared 'she began cleaning her lamp, and while doing so appellant came in and she asked him if she should fix his lunch basket for him to carry with him to his work, and he said he'had concluded not to go out that day. He began teasing her and she chased him out of the house with the lamp in her hand, and in going out of the door she slipped on a block and fell, breaking the lamp and fell on it. Her head struck the broken glass and made a cut above her eye. Pieces of the broken glass also cut the palm of her hand. These cuts were exhibited to the” jury. Appellant saw that she was hurt and helped her in the house and bathed the blood off her face. She denied that appellant threw a bottle at her, as testified by some of the State witnesses. She further denied that appellant struck her at any time while she was down, -or at any other time. There were no bruises on her head to show a lick of any kind. The only cut she had was from the glass of the broken lamp. Appellant’s testimony is to the same effect. In addition to what is stated as evidence by the State, the first witness testified as he got opposite the hous.e he saw defendant run out of the house, his wife after him. They ran around the house so that he could not see them. He then got out of the wagon and went around where they were and saw defendant with his arms around his wife, helping her into the house. Mrs. Lou Metcalf and Mrs. Rose Metcalf testified, in substance^ that they were passing the house, and saw defendant and his wife come out of the house fighting. "When they came together he threw her down and struck her three licks with a stick over the head. They were about one hundred yards distant with a fence intervening between them and defendant and his wife. That the wife ran and he threw a bottle at her and broke it, but did not hit her. Neither of these parties heard a word uttered between defendant and his wife. This is the case on the evidence.

1’. Appellant asked a charge which was refused by the court, as follows: “Now, if you -believe from the evidence that the defendant, Newland J-ordan, struck Mattie Jordan with a stick, and that in doing so he intended to injure her, he would be guilty of aggravated assault, as that offense has been defined to you. If you believe from the evidence that defendant did not strike the said Mattie Jordan with a stick the defendant would not be guilty of aggravated assault, and you will so say by your verdict.

“But although you may believe that the defendant struck Mattie Jordan with a stick, but in doing so you should believe there was no intent to injure the said Mattie Jordan, then he would not be guilty of aggravated assault, and in that event you will find the defendant not guilty.”

The court properly refused this charge -as it is written. If appellant intentionally struck his wife with a stick on the head he would be guilty of an aggravated assault. This is not .a case where appel lant could claim the advantage of such a charge, because if the lick was struck at all, it was struck intentionally. Of course, if he struck his wife accidentally or unintentionally, with no purpose of making an assault on her, the charge requested would have been appropriate; but this record does not present such a state of case.

2. We are asked to reverse the judgment because the evidence does not support the conviction. Under the testimony of the two witnesses named Metcalf, the verdict of the jury seems to be justified. If appellant struck his wife over the head with a stick, this would constitute an aggravated assault under the allegation in the pleading, which is that it was an assault by an adult male upon a female. Our law constitutes this as one of the grounds of aggravated assault. It is a question under the evidence that appellant committed.the assault, but the two witnesses testify they saw him strike her three times with a stick. This was denied by appellant and his wife. This, it occurs to us, makes the question one of fact peculiarly within the province of the jury to decide and settle. Under the circumstances this court would hardly be justified in reversing the case for this reason.

We are therefore of opinion that the judgment should be affirmed, and it1 is accordingly so ordered.

Affirmed.