
    ELY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1912.
    Rehearing Denied Jan. 15, 1913.)
    1. Criminal Law (§ 1099) — Appeal and Er-eos — Statement op Facts — Timely Filing.
    Where it reasonably appears that a statement of facts was filed within the time allowed, though the file mark placed thereon makes it one day late, the defendant is entitled to the benefit of the doubt, and the statement should be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Indictment and Information (§ 189)— Aggravated Assault — Simple Assault.
    Where an information charged that accused, an adult, committed an aggravated as: sault under Pen. Code 1911, art. 1022, subd. 5, it included a simple assault on proof that she was not an. adult.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 582-595; Dec. Dig. § 189.]
    3. Criminal Law (§ 1090) — Appeal and Error — Bill op Exceptions — Necessity.
    Complaints, in a motion for a new trial, to which no hill of exceptions was taken and preserved could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Assault and Battery (§ 64) — Defenses —Exercise op Authority.
    Under Pen. Code 1911, art '1014, providing that violence is not assault and battery when moderately exercised by a teacher in correcting a pupil, a teacher was not guilty of assault and battery in whipping a pupil, where she acted without malice and inflicted only a moderate punishment for corrective purposes, though unusual consequences may have resulted from an abnormal condition of the blood, which was unknown to her.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 90-92; Dec. Dig. § 64.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 539, 540; vol. 8, p. 7582.]
    Appeal from Llano County Court; A. H. Willbern, Judge.
    Miss Blanche Ely was convicted of assault and battery, and she appeals.
    Reversed and remanded.
    Wilburn Oatman and J. H. McLean, both of Llano, for appellant. F. J. Johnson, Asst. Co. Atty., and Jas. Flack, both of Llano, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      1 or other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

By proper complaint and information appellant was charged with committing an aggravated assault upon Ralph La Hatte on November 3, 1911; said La Hatte being a child and appellant an adult female. The proof, without doubt and without contradiction, showed that Ralph was a schoolboy 13 years of age, attending the school in which appellant taught, and that she was his teacher and he her pupil; also that at the time she was not 21 years of age, and therefore not an adult; that she on this occasion, for his violation of the rules of the school, and for the purpose of restraining and correcting him in the school during school hours, whipped him; and that it was proper and necessary so to do at the time. Upon it being developed that the appellant was not then 21 years of age, the state abandoned seeking a conviction for an aggravated assault and contended only for a simple assault. Sbe was convicted of a simple assault and battery and fined $10.

A contest was made in tbis court to exclude and strike from the record the statement of facts, because not filed within the 20 days after adjournment, which was allowed by tbe court. It is unnecessary to state the particulars of this contest. Suffice it to say that, while not entirely clear, it was reasonably shown to tbis court that tbe statement of facts was actually filed within the 20 days, though the file mark placed thereon by the clerk made it one day later. After due consideration of this question, we conclude that, even though there may be some doubt on this point, we give the appellant the benefit of it and bold that tbe statement of facts was filed within time, and consider it in the disposition of the case.

Appellant contends that because tbe information charged that appellant was an adult, and the proof showed that she was not, that the conviction is fatal on that account. Our statute prescribes that where a prosecution is for an offense consisting of different degrees the jury may find the defendant not guilty of the higher but guilty of any degree inferior to that charged in the indictment or information. The information charging that she was an adult, while proper under subdivision 5, art. 1022, P. O., to charge an aggravated assault, included a simple assault, if not proven that she was an adult. The information charging -she was an adult is not descriptive of the offense in tbe sense that, if not proven, it would not sustain a conviction of a less degree, but tbe information would clearly include a simple assault, and would not be fatal to a conviction for a simple assault.

There are several complaints in the motion for new trial to the charge of the court and the refusal to give appellant’s special charges requested; but, as no bill of exceptions was taken and preserved to the charge of the court and none to the refusal of the court to give the special charges requested, we cannot consider those questions. While some of the complaints of the charge may be correct, and while some of the special charges requested probably ought to have been given, under the settled law of this state, the points not being correctly preserved and presented by bills of exception, we cannot pass upon such questions. It is needless to cite all the cases on this subject, but on this point see Giles v. State, 148 S. W. 320, and some of the cases collated in that decision.

Ordinarily, in view of a new trial, it might be proper to discuss such matters, though not properly raised. Yet, in view of the disposition we make of this case, we deem it unnecessary to do so.

Appellant does properly raise the question, and contends that the evidence is insufficient to sustain the verdict. We have carefully gone over and studied all of the evidence in this case, and have reached the conclusion that this contention by appellant is correct and necessarily results in the reversal of the judgment. While our statute (article 1008, P. G.) enacts that the use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery, on the same subject it expressly also provides (article 1014, P. G.) that violence used to the person does not amount to an assault or battery in the exercise of the right of moderate . restraint or correction given by law to the parent over the child, the guardian over the ward, the master over his apprentice, and the teacher over the scholar or pupil. Judge White, in his annotated Penal Code, under this article, lays down the correct rules wherein he says: “The law confides to teachers a discretionary power to punish pupils, and exonerates them from responsibility, unless the punishment be excessive or malicious. Moderate restraint and correction of a pupil by his teacher is not an offense, but is authorized by law. When a teacher corrects his pupil, the presumption is that it is in the exercise and within the bounds of his lawful authority; and it does not devolve upon him to show accident or his innocent intention. Neither is it any criterion of his act or intention that bodily pain, constraint, and a sense of shame or other disagreeable emotion of the mind is produced. He has the right to inflict moderate corporal punishment for the purpose of restraint or correcting the refractory pupil, but only that degree of violence must be used which is necessary to effect such purpose. The instrument used in, nor the manner of, the punishment are not the proper tests of the extent of the punishment. The law has not laid down any fixed measure of moderation in the lawful correction of a child; nor is it practicable to do so. Whether it is moderate or excessive must necessarily depend upon the age, sex, condition, and disposition of the child, with all the attending and surrounding circumstances, to be judged of by the jury under directions of the court as to the law of the case.”

The uncontradicted testimony of Ralph, the pupil, and appellant, the teacher, positively disproves any malice, ill will, or intent to injure, other than what the teacher had the right to inflict. All the other testimony in the case, we think, also clearly establishes, without doubt and without contradiction, that the whipping inflicted by the appellant upon her pupil was not excessive, but was only a moderate punishment, and what she had unquestionably the right to inflict. From all the evidence, we think, it is unquestionably shown that if the condition of Ralph’s blood had been normal, as the legal presumption is that it was, no question could have been made that the punishment inflicted, under the facts and circumstances as shown in this ease, was immoderate or excessive. It was only because of the condition of his body at the time that would even raise this question. The testimony shows that appellant did not know and had no notice of his condition, other than that of a normal boy, and nothing in the evidence indicates that she had any other notice or knowledge. Besides this, at once after it was suggested that an unusual and excessive whipping had been administered, the trustees of the school, as disinterested persons, were called in by the parents of the boy at the time for the purpose of carefully examining him, and each and all did examine him and came to the conclusion, and so testified, that the whipping was not immoderate or excessive. Our opinion is that all the facts and circumstances so showed. If upon another trial only substantially the same testimony is introduced as upon this, the court should give a peremptory instruction to the jury to acquit the appellant. Stephens v. State, 44 Tex. Cr. R. 67, 68 S. W. 281; Greer v. State, 106 S. W. 361.

The judgment is reversed, and the cause is remanded.  