Cabness v. State

BEAUCHAMP, Judge. Appellant was convicted on a charge of aggravated assault and assessed a penalty of one year in the county jail. The record of the appeal contains but one bill of exception. Another question as to the competency of a three-year-old child as a witness, which has been raised in the argument, we do not feel has been presented for our consideration and it will not be noticed. The bill of exception raises a question of variance between the allegations of the complaint and the evidence. This has given us considerable concern, but, after careful study of the authorities presented, together with many others, we have concluded that the contention cannot be sustained. The indictment charges, “William Cabness * * *in and upon Georgia Mae Brown did then and there unlawfully commit an aggravated assault and battery and did then and there strike, beat, bruise and wound the said Georgia Mae Brown, etc.” We refrain from stating the repulsive facts upon which the prosecution relies, but believe it sufficient to say that they amply sustain a conviction for an aggravated assault, unless it should be found necessary as a matter of law to prove that he did strike, or beat, or bruise, or wound the said Georgia Mae Brown. The complaint, it will be observed, would have been sufficient had these words been left out, including the word “and” following- the word “battery,” together with the entire phrase following it. The complaint further sets out that the appellant was an adult male person and that Georgia Mae Brown was a child. Had the allegation been that the battery was committed “by” striking, beating, bruising and wounding the alleged injured party, the question would be a more difficult one, but the allegations are complete without the use of these words and we think that under the authorities hereafter cited- they may be considered mere surplusage. This ques [369] tion was thoroughly considered in a concurring opinion by Judge Davidson in the case of Dent v. State, 65 S. W. 627, wherein he used the following language: “This, being an unnecessary allegation, did not necessarily vitiate the indictment, and therefore could be rejected as surplusage. Such has been the rule in Texas from the beginning (Saddler v. Republic, Dall. Dig. 610), and for collation of authorities see White’s Ann. Code Cr. Proc. Section 382. Where an indictment contains the necessary averments to constitute one offense, and also details facts necessary to, but not sufficient to, constitute another offense, such facts, with regard to the offense defectively alleged, will be treated as surplusage. Crow v. State, 41 Tex. 468; State v. Coffey, Id. 46; State v. Dorsett, 21 Tex. 656; State v. Smith, 24 Tex. 285; Henderson v. State, 2 Tex. App. 88; Pickett v. State, 10 Tex. App. 290; Holden v. State, 18 Tex. App. 91. Redundant allegations, and those which are in no manner necessary to a description of the offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the accused, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment.” Following the foregoing quotation the writer listed a great number of authorities to sustain his position. These, we find, have been frequently referred to in this and in other jurisdictions and are sustained by good reasoning, as well as a wide recognition by the courts. See, also, Branch’s Tex. Cr. Law, Sec. 905; Goodwin v. State, 158 S. W. 274; Zweig v. State, 171 S. W. 747. Finding no reversible error, the judgment of the trial court is affirmed.