Henkel v. State

White, Presiding Judge. Appellant was tried on a complaint in a justice’s court charging him with an assault upon the same party and on the same occasion as is charged in the information in this case. On that trial he pleaded guilty to an assault and was fined by the justice in the sum of five dollars. He pleaded this former conviction in bar to the prosecution in this case. His plea was stricken out on motion of the prosecuting attorney, and this action of the court is one of the errors complained of. Evidently the defendant was tried and convicted in the justice’s court and punished for a simple assault. His trial was not for an aggravated assault, and moreover, it was had upon a complaint and not upon an information or indictment. His prosecution herein was by information and for an aggravated assault, the charge in the information being an assault by an adult male upon a female. Such being the character of the two prosecutions, the former conviction was not a bar to the latter prosecution, which was for a higher grade of offense, and because the former conviction was not the result of a prosecution by indictment or information. (Code Crim. Proc., art. 553; Allen v. The State, 7 Texas Ct. App., 298; Achterberg v. [512] The State, 8 Texas Ct. App., 463; Grisham v. The State, 19 Texas Ct. App., 504; White v. The State, 9 Texas Ct. App., 390.) There was no error in striking out said plea. Opinion delivered May 4, 1889. As stated above, the information in this case charged an aggravated assault by an adult male upon a female, and in order to warrant a conviction the prosecution was bound to prove the allegation as laid,—that is, that the defendant was an adult male. “Adult” means a person who has attained the full age of twenty-one years.” (George v. The State, 11 Texas Ct. App., 95; Schenault v. The State, 10 Texas Ct. App., 410.) There is no direct positive proof in the statement of facts to the effect that defendant was and is an adult male, but we find that he is spoken of as a “man” and “a railroad hand,” and there was no question made at the trial below as to this fact. On the contrary, the defendant appears to have been recognized by all the parties at the trial, and by the court, as an adult. The rule seems to be now w.ell settled upon this subject that, where there is no question or controversy as- to this matter raised or availed of in the court below nor suggested by the facts in evidence, the case will not be reversed for want of specific proof of the fact. (Tracy v. The State, 44 Texas, 9; Veal v. The State, 8 Texas Ct. App., 477; Gaston v. The State, 11 Texas Ct. App., 143; Andrews v. The State, 13 Texas Ct. App., 343; Hall v. The State, 16 Texas Ct. App., 6.) That paragraph of the charge of the court to which defendant specially excepted is fully sustained by repeated decisions of the courts of this State. (Pfefferling v. The State, 40 Texas, 486; Thompson v. State, 43 Texas, 583; Curry v. The State, 4 Texas Ct. App., 574; Ridout v. The State, 6 Texas Ct. App., 249; Atkins v. The State, 11 Texas Ct. App., 8; George v. The State, Id., 95; Sanford v. The State, 12 Texas Ct. App., 196; Willson’s Crim. Stats., sec. 841.) We have found no material error in the record as submitted to us in this case, and the judgment is therefore affirmed. Affirmed.