
    HARWELL v. STATE.
    (No. 8016.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1924.)
    Assault and battery <&wkey;>9( — Evidence held to sustain conviction.
    Evidence held to sustain conviction of a school-teacher for assault, consisting of excessive whipping of a pupil.
    Appeal from Hale County Court; Meade E. Griffin, Judge.
    Jesse B. Harwell was convicted of assault, and appeals.
    Affirmed.
    L. D. Griffin, of Plainview, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is assault; punishment fixed at a fine of $25.

Appellant was a schoolmaster. James Ferguson, a boy about 12 years of age, was his pupil. The boy said that he was whipped with a board about 18 inches long, about 2 inches wide, and about one-eighth of an inch thick; that the appellant broke the board while whipping him, and that he then doubled the board and continued to whip him, striking him about 11 licks, causing blue places on his hips and legs which lasted for about a week. The boy was wearing' union-alls and heavy underwear. There were three bruised places on his body of about 1½ or two inches wide, from which oozed blood, though it did not come entirely but nearly through the clothing. The boy said he could not sit down straight in an arm chair, but had to slip down on his back, for about a week or., 10 days. He also had bruised places on the lower cheek of his hips and the upper part of his leg. The whipping was for truancy. The father of the boy testified that he examined him on the night after the whipping took place; that the blue places on his son’s legs and hips showed that the hide had not been broken, b.ut blood was oozing, from them and would stain a white cloth; that there were four or five bruised places upon the hips and the upper part of his legs, and they were about 2½ to 3 inches long, and 1½ to 2½ inches wide. The flesh was beaten up very badly. The mother of the boy testified that she examined the bruises; that he complained of them for about a week or 10 days; that after that time’they disappeared. Other witnesses testified to the discolorations.

Miss Bowers, a school-teacher, testified, in substance, this: The boy was whipped at her request because of his organizing a “Tom Sawyer’s Game.” The punishment was given with a board about 18 inches long, 1 ⅛ inches wide, and one-eighth of an inch thick. Other boys were whipped about the same time. The board split, and appellant doubled it and used both pieqes when James Ferguson was whipped. Appellant did not seem angry, but was in perfectly good humor. James Ferguson did not stop school on account of the whipping, and remarked after the whipping that he “had lots more fun than the whipping was worth, and that he was going to play hookey again and see if the Prof, will give him another whipping.” There was evidence of the whipping given pro and con with reference to the character of the whipping given the other boys at the same time. AiDpellant did not testify.

There are no bill of exceptions nor complaint of the ruling of the trial court.. The only question presented is the sufficiency of the evidence. The question seems to be one purely of fact. We are not prepared to say that the jury was wrong in concluding that the punishment inflicted did not exceed the bounds of reasonable chastisement.

The judgment will therefore be affirmed. 
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