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87 Tex. Crim. 277

220 S.W 777

Simpson v. State

Court of Criminal Appeals of Texas

Decided April 28, 1920

Court of Criminal Appeals of Texas · decided 1920-04-28

<p>1. —Delinquent Child—Aggravated Assault—Charge of Court—Misdemeanor.</p> <p>Where, upon trial of aggravated assault, defendant being a delinquent child, the same under the statutes is a misdemeanor case, and the objections that the trial court erred in failing to define the offense of an aggravated assault cannot be considered, in the absence of a requested charge and bills of exception, the complained error not being fundamental. Following Wheeler v. State, 56 Texas Crim. Rep., 550, and other cases.</p> <p>2. ‘—Same—Evidence—Deadly Weapon.</p> <p>Where, there was no testimony to contradict the State’s evidence that the knife used was a deadly weapon, there was no error.</p> <p>3. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of defendant as a delinquent child, the evidence sustained the allegations in the information, that defendant was guilty of an aggravated assault with a deadly weapon, etc., the conviction was sustained.</p> <p>4. —Same—Rehearing—Statutes Construed—Practice on Appeal.</p> <p>Where, upon rehearing appellant contended that the evidence was insufficient to support a conviction of aggravated assault, fixing the punishment of the delinquent child at three years confinement in the State Training School For Boys, but the record sustains the original opinion, the motion for rehearing must be overruled; besides, if appellant had been found guilty of a simple assault only, it could not have affected his punishment, as this would be a violation of the law under the statutes defining delinquent children, and in either event the jury must have found that defendant was a delinquent child, and the court having submitted a charge on self-defense, the judgment must be affirmed.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1920-04-28

How this case has been cited

Cited by 6 later decisions — most recently February 1949

6 state decisions

30192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 on rehearing, April 28, 1920.

LATTIMORE, Judge.

¶2 In his motion for rehearing, appellant insists that we were in error in holding the evidence sufficient to make out a case of aggravated assault. We are unable to agree with this contention, but observe that if the jury had merely found that there was only a simple assault committed, instead of an aggravated assault, it could not have in any way affected the matter involved. The issue was as to whether or not appellant was a delinquent child, and under our statute on the subject, he became such delinquent when he violated any law of this State. See Acts of the Fourth Called Session of the Thirty-fifth Legislature, Chapter 26. A simple assault is as much a violation of the law of this State as is an aggravated assault, and, therefore, in either event, the verdict of the jury must have been that appellant was a delinquent child. We do not see how any harm could have resulted to appellant. The penalty fixed by the jury was for delinquency, and it was based on the facts before them, and whether the offense made by the facts be called by one name or another in the statutes, the facts themselves would be unchanged, and would, therefore, have called for the same penalty at the hands of the jury. It is so, both by statute and numerous decisions, that under a charge of aggravated assault in this State, a conviction may be had for simple assault.

¶3*280 The record- in this case showed that appellant cut one Dudley Keith with a knife. Unless the cutting was in self-defense, appellant was guilty of a violation of the law. If guilty of any violation of the law, he became a delinquent by reason of that fact. Unless, then, he be ac-. quitted, he must be adjudged a delinquent.

¶4 The trial court submitted self-defense in his charge, and the jury found against appellant thereon, and the judgment, of delinquency was the necessary sequence. The punishment fixed was within the bounds laid in the statute.

¶5 The motion for rehearing is overruled.

¶6 Overruled.

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