
    HAHN v. STATE.
    (No. 5690.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1920.)
    1. Assault and battery <g=^85 — Exclusion OF EVIDENCE IN PROSECUTION FOB AGGRAVATED ASSAULT THAT PERSON ASSAULTED WAS A COMMON THIEF NOT EKROB.
    In a prosecution for an aggravated assault, the exclusion of evidence that the person assaulted was a common thief was not error, in view of the court’s qualification, stating that all that was attempted to be shown by defendant’s witness was that .while such person worked for witness some lumber was stolen.
    2. Cbiminal law <®=>396(1) — Where information ALLEGED THAT DEFENDANT CHARGED WITH ASSAULT WAS OF ROfiUST HEALTH, WHICH HE DENIED, THE STATE MIGHT SHOW OTHERWISE.
    In a prosecution for aggravated assault, based on the ground that the person assaulted was a decrepit person, and that defendant was of robust health and strength, where defendant testified in his own behalf that he suffered a great deal from rheumatism, causing him to limp, and that he was not in robust health, the state might properly show that witnesses with opportunity to know had not seen him limp.
    Appeal from Upshur County Court; D. Walker, Judge.
    Joseph Hahn was convicted of aggravated assault, and appeals.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for an aggravated assault, and punishment fixed at a fine of 8100 and 30 days confinement in jail.

The information charges the assault to have been upon Lum Carpenter, and sets out two grounds of aggravation: First, that Carpenter was a decrepit person, and the appellant one of robus't health and strength; the other that the offense was committed by striking Carpenter with a horsewhip, inflicting disgrace. There is evidence supporting both phases of the charge and a general verdict of guilty.

Bill No. 1 embodies the complaint of the refusal of the trial court to permit proof that Carpenter was a common thief. If the evidence were admissible, the court’s qualification reveals an absence of error, in that it says that all that was attempted by the appellant was to show by a certain witness that while Carpenter worked for him some lumber was stolen.

Bill No. 2 complains of the refusal of the court to permit the appellant to testify that Carpenter had stolen certain tools from him. The qualification shows that the proof was made, and this is verified by the statement of facts.

The third bill complains of the admission of testimony going to show that the appellant had not been seen by the witnesses to limp. This bill is qualified with the statement that the appellant testified in his own behalf, stating that he suffered a great deal from rheumatism, which caused him to limp. This also appears from the statement of facts. We assume that this evidence was offered to rebut the state’s theory and proof that he was a man in robust health and strength. The appellant having presented the issue as to the state of his health and the use of his limbs, the state was within its rights in meeting it by showing on the cross-examination and otherwise that the witnesses, with opportunity to know the facts, had not observed him limping.

Bailing to find any error in the judgment, its affirmance is ordered. 
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