
    KOONTZ v. STATE.
    (No. 6867.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.
    Rehearing Dexded May 24, 1922.)
    1. Assault and battery <§⅜74 — Indictment held sufficient to charge a battery.
    In a prosecution for aggravated assault, an indictment charging that accused did then and there unlawfully in and upon L. commit an aggravated assault, and did then and there strike and kick the said L. with his hands and feet, and did then and there and thereby inflict serious bodily injury upon the said L., sufficiently charged a battery.
    2. Criminal law <§c=ll69(2) — Admission over obiection of evidence previously admitted without objection held' not reversible error.
    In a prosecution for aggravated assault where evidence that accused was wearing spurs when he kicked and stamped a person was admitted without objection by accused, the admission of evidence to the same effect by another witness over the objection of the accused was not reversible error.
    On Motion for Rehearing.
    3. Criminal law <s=3364(!) — Evidence that accused wore spurs when he stamped on a person admissible as a part of res gesta. >
    In a prosecution for aggravated assault, evidence that accused was wearing spurs when he stamped a person was admissible as a part of the res gesta.
    Appeal from Williamson County Court; F. D. Love, Judge.
    Ernest Koontz was convicted of aggravated assault, and he appeals.
    Affirmed.
    J. F. Taulbee, of Georgetown, for appellant.
    Dan Moody, Co. Atty., of Taylor, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for aggravated assault; punishment fixed at confinement in tlie county jail for 60 days.

The indictment charges the assault in these words:

“ ⅜ * * Did then and there unlawfully in and upon Riley Lynn, commit an aggravated assault; and the said Ernest Koontz did then and there strike and kick the said Riley Lynn with his hands and feet, and did then and there and thereby inflict serious bodily injury upon the said Riley Lynn.”

It appears from the evidence that Lynn had a load of watermelons for sale. As appellant passed him, Lynn asked him whether he wanted to buy a melon, to which he replied, “No.” After he passed, Lynn continued hollering, “Watermelons!” Koontz,' after walking some 20 steps, came back and said: “Fellow, what did you insult me for?” Lynn replied: “I did not insult you.” Koontz then said: “Why, you did, and get out and fight me like a man.” Lynn disclaimed insulting him. He finally got out of the wagon. The evidence is conflicting touching which struck the first blow. The appellant struck Lynn several times with his fist, knocked him down, and “stomped” him with his feet. The injuries suffered by Lynn were described by several witnesses.

Dr. Atkinson testified, in substance, that in his examination he found no discoloration about the chest. There was a cut just above Lynn’s left ear, and another from his lip, running down towards his right cheek bone. There were minor cuts about his left ear, but the one on his lip was the principal cut, which required six stitches to sew it up. There were also bruised places and discoloration about his face. The cuts were made by some jagged instrument, and might have been made with a spur, but could not have been made with a man’s fist and the heel of a boot. Lynn was very sick and vomited blood, but it could not be said whether it was blood from an internal injury or blood that had been swallowed. He was unconscious, but the doctor was unable to discover the exact cause thereof. The injuries were considered serious.

We think the allegations in the indictment were sufficient to charge a battery. We find two bills of exceptions, in each of which complaint is made of the receipt in evidence that at the time of the difficulty the appellant wore spurs upon his feet. Bill No. 1 complains of the admission of such testimony through the witness Atkinson. Bill No. 2 complains of its admission through the witness Mrs. S. A. Walton. Turning to the statement of facts, we find that the witness H. A. Walton testified that, at the time ap-pellant “stomped” and kicked Lynn, “he had spurs on each of his feet.” That there were spurs upon the feet of the appellant was not controverted. There is a well-established rule of evidence that, when a fact is proven without objection, ordinarily the admission of other evidence to the same point, over objection, does not justify a reversal. Charles v. State, 85 Tex. Cr. R. 534, 213 S. W. 266; Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169. The application of this principle to the instant case is apparent.

We note, also, in the agreed statement of facts, purporting by its terms to embrace all the testimony, that neither the witness Mrs. S. A. Walton nor Atkinson makes any reference to spurs on the feet of appellant, but that appears in the testimony of H. A. Walton alone. The evidence, we think, is sufficient to show that the injuries were serious without reference to those which were traceable to the spurs. The court, in a very specific manner, instructed the jury that, in determining whether the injuries were serious, they would take no account of any injuries that may have been inflicted by reason of the spurs.

We are unable to persuade ourselves that there is anything revealed in the record requiring a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

HAWKINS, J.

Bills of exception 1 and 2 show that witnesses Atkinson and S. A. Walton, over objection, testified that appellant had on spurs when he was “stomping” Lynn. All bills of exception must necessarily be considered in relation to the facts in evidence. The statement of facts show that H. A. Walton, a son of S. A. Walton, also testified without objection that appellant had on spurs. In support of the proposition that, when a fact is proven without objection, the admission of other evidence on the same point, over objection, does not ordinarily justify reversal, in addition to the cases referred to in the original opinion, we cite, Rogers v. State, 26 Tex. App. 404, 9 S. W. 762. We are further of opinion there was no error in the admission of this testimony even over objection. It is true same' could not be appropriated by the jury to base a conviction thereon, the assault not being alleged to have been made with spurs; but it was admissible as a part of the res gestee, and as throwing light on appellant’s intent. Richards v. State, 3 Tex. App. 423; Irving v. State, 70 Tex. Cr. R. 222, 156 S. W. 641.

The motion for rehearing is overruled. 
      <§=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     