
    WILMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1911.)
    1. Criminai Law (§ 595) — Continuance — Grounds For — Materiality oe Testimony.
    In a prosecution for aggravated assault upon a child, where the only matter of aggravation was that he was a child, testimony by the boy’s mother, that he' was over 14 years of age, and that accused had, at her request, assumed guardianship of the boy, was material, for, under the statute making an assault upon a child an aggravated one, only boys under the age of 14 and girls under the age of 12 are children, and hence accused, having exercised due diligence, was entitled to a continuance because of her absence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    2. Criminal Law (§ 598) — Continuance — Absence oe Witness — Diligence.
    In a prosecution for aggravated assault, where accused was arrested on the day the information was filed, and on the next day procured the issuance of a subpoena for an absent witness, such subpoena being mailed to the proper sheriff, accused showed sufficient diligence to be entitled to a continuance on account of the absence of such witness.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1335-1341; 598.] see Criminal Dec. Dig. §
    3. Criminal Law (§ 596) — Continuance — Cumulative Evidence.
    Upon accused’s first application for continuance, the rule with regard to cumulative evidence does not apply.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    4. Assault and Battery (§ 96) — Prosecution— Instructions.
    In a prosecution for aggravated assault upon a child, a charge that if the jury should believe at the time the child was making his home with accused, and that his mother had requested accused to manage him, and that, if the punishment was not excessive, then accused was not guilty, placed too great a burden on accused ; it being sufficient if the jury had a reasonable doubt whether the punishment was excessive.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    5. Assault and Battery (§ 96) — Prosecution — Instructions.
    In a prosecution for aggravated assault upon a child, where the only evidence as to all was that of the child which was that his mother fixed his age as under 14 years while his sister said he was over 15, a requested charge that, if there was reasonable doubt as to whether or not he was over 14, accused must be acquitted, was improperly refused.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    6. Assault and Battery (§ 54) — Aggravated Assault — “Children.”
    Under the statute making an assault upon a child an aggravated one, boys over 14 and girls over 12 are not children.
    [Ed. Note. — For other cases, see Assault and Battery, Dec. Dig. § 54.
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1115-1141; vol. 8, p. 7601.]
    Appeal from Delta County Court; C. C. Dunagan, Judge.
    Will Wilman was convicted of aggravated assault, and appeals.
    Reversed and remanded.
    Newman Phillips, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was charged with an aggravated assault upon Charlie Darden. The means of aggravation is that appellant is an adult and 'Darden is a child.

Appellant used due and timely diligence to procure the attendance of Mrs. Darden, the mother of the alleged assaulted party. By the absent witness appellant expected to prove, in addition to the facts adduced, that she was the mother of the boy, and that she had turned the boy over to him, and asked him to take charge of him as a friend and as a qualified guardian of her child. It is shown she was a widow and unable to support the boy, or at least had difficulty in doing so, and that the boy was seeking work for himself in order to relieve the situation, and had secured a home and employment with appellant; that the mother of the boy had requested appellant to take charge of him, and treat him practically as if he was part of his family, etc. He further expected to proye by Mrs. Darden that the boy was over 14 years of age. This was a very material question in the ease. The information charges he was a child which under our decisions would require evidence showing that he was under 14 years of age. Appellant would have a right to meet this allegation, and show that the boy was over 14 years of age. If he was over 14 years of age, then, under the pleadings, appellant would not be subject to punishment for a higher offense than simple assault. There are no allegations of serious injury, or deadly weapons, but the allegation is confined exclusively to the fact that the boy was a child.

The evidence in the record is from the assaulted party on this question. He says that his mother told him that he was under 14 years of age, but his sister always told him he was 15 years of age; that his mother and sister did not agree upon that part of the family history. The allegation in the application for continuance is that appellant expected the boy’s mother to swear on the stand that the boy was over 14 years of age as a matter of fact. This being one of the most material questions in the ease, appellant had a legal right to have such testimony as he could get to meet this statement. It was a first continuance, and the diligence was all that could be required. The affidavit was filed on the 27th of May, and the information on the same day. The application for continuance was filed on the 1st of June, only four days after the filing of the pleadings in the ease. The charge of the court was filed on the 1st day of June, and the judgment was entered on the 1st day of June. Appellant was arrested on the 28th day of May, subpoena issued on the 29th of May, and was mailed to the proper sheriff for execution, requiring the witness to appear before the court on June 1st. It is further alleged there had not been sufficient time for the process to be returned, or for the witness to reach the court. This trial occurred in Delta county, and the witness is alleged to have resided in Kaufman county. This being the first application, the rule with regard to cumulative evidence does not apply.

There are some matters suggested for revision by bills of exception and motion for new trial in regard to the charge. The court charged the jury that if they should believe that at the time of the alleged offense Charlie Darden was making his home with appellant, and that the mother of said Charlie Darden requested defendant to manage and control Charlie, and that if they should find, further, that the punishment administered to Charlie was done in a moderate way, and not excessive, in that event he would not be guilty; but, on the other hand, if the punishment was excessive and cruel, etc., they would find him guilty. This charge seems to almost, if not quite, trench upon the rule prohibiting charges upon the weight of evidence. It is not necessary that the jury should believe as an affirmative fact the matter set out in order to acquit him. If there was a reasonable doubt about these matters, appellant was entitled to an acquittal. On the other hand, the jury would have to believe beyond a reasonable doubt that the punishment was not such as was authorized in a moderate way in order to convict. We call attention to this, so upon another trial these matters in the charge will not be left in this condition.

The court failed to charge, and appellant requested a special charge to the effect, that, if there was a reasonable doubt as to whether or not the boy was over 14 years of age, he would be entitled to the benefit of the doubt and consequent verdict of not guilty. The only evidence in the record, as before stated, was from the alleged assaulted party, to the effect that his mother fixed his age as under 14 years while his sister told him he was over 15 years of age. The statements of this witness as to what his mother and sister told him was all the evidence in the case in regard to the matter. Under this testimony the charge requested by appellant should have been given. The authorities in this state hold that the word “child” under our statute, in reference to aggravated assault, applies only to boys under the age of 14, and girls under the age of 12. Bell v. State, 18 Tex. App. 53, 51 Am. Rep. 293; McGregor v. State, 4 Tex. App. 599; Allen v. State, 7 Tex. App. 298. While the matters mentioned in regard to the charge of the court, and the refusal of the special requested instructions, are not sufficiently presented to require consideration, inasmuch as they do not specify the grounds of objection, still we call attention to the fact in order that upon another trial the law should be applied to the facts of the cáse, and this is done because we are reversing the judgment upon the failure of the court to continue the cause. These matters may save trouble upon another appeal in case of conviction, and appellant sees proper to appeal.

The judgment is reversed, and the cause is remanded.  