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s: Tex. Cr. R. 468) HARRIS v. STATE. (No. 4573.)

(Court of Criminal Appeals of Texas. March 27, 1918. Rehearing Denied June 5, 1918.) 1. SCHOOLS AND SCHOOL DISTRICTs Q->176PUNISHMENT OF PUPILS. Vernon’s Ann. Pen. Code 1916, art. 1014, requires that punishment of a pupil by a teacher be moderate, but what is moderate punishment in a given case is to a large extent a question of fact. 2. CRIMINAL LAW (3-5390–EVIDENCE—PUNISIIING PUPIL–INTENT. In prosecution of a school-teacher for aggravated assault on a pupil, the accused may testify as to intent with which a whipping was given, but his statement will not be conclusive against other evidence tending to contradict it. 3. ASSAULT AND BATTERY 3-795—DAMAGES. . Whether punishment of a pupil was excessive is a question of fact, or a mixed question involving fact. 4. ASSAULT AND BATTERY & 92 – PUNISHMENT OF PUPIL-AGGRAVATED ASSAULT – SUFFICIENCY OF EVIDENCE. . . Evidence held sufficient to sustain a conviction of aggravated assault by a school-teacher by reason of the manner of punishing a pupil.

Appeal from Harris County Court, at

La W ; Murray B. Jones, Judge.
Frances Harris was convicted of aggravat-

ed assault, and She appeals. Affirmed.

J. M. Gibson, of Houston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. The conviction was for aggravated assault, the punishment a fine of $25. The sole question is the sufficiency of the evidence." | The appellant was a teacher in one of the

public schools of Houston, and the alleged injured party was one of the pupils in the School. That appellant gave Max Larrieu, a boy between 13 and 14 years of age, a Whipping is not denied, but is justified under article 1014, P. C., Which permits the exercise Of moderate restriction and correction of a pupil by the teacher. The boy, according to the testimony of appellant, had been unruly at a previous term; on the occasion in question, having left his seat several times and disturbed the recitation, was told by her that if he did so again She Would Whip him. She subsequently found him on the floor under his desk; he claiming he was looking for his pencil, which she says she thought he had thrown. On the floor as an excuse. She undertook to whip him with a leather strap about 1 inch Wide and 14 inches long. He resisted and struggled and Miss Johnson, another teacher, came to her assistance. He got On a StairWay and She pulled him down to prevent injury to him and took him to the principal’s room, where, While the principal was holding him, she hit him several licks With a strap about 2 inches wide and 14 inches long. She said she struck him about 25 licks altogether.

She had, she said, no ill will or malice toWards him, Or intent to injure; did not know

he was hurt; only used a strap that was provided by the School authorities; Was actuated Solely by desire to enforce discipline; was not mad or angry, but was only determined to conquer him. She left him in the principal’s Office, and that Official SayS he hit him 5 or 6 times with a strap after appellant left. She testified that she had heard him tell Miss Johnson that She (appellant) was a liar; that he did not misbehave. The boy, Max, said he did not misbehave; that he did not hear Miss Harris tell him she would whip him if he left his seat; that he dropped his pencil and got down to get it; that he resisted and tried to escape because he had not misbehaved; that appellant tWisted his arm When he tried to eScape and he told her she was breaking his arm and at Miss Johnson's suggestion she released him; that after the whipping began he was taken to Miss Johnson’s room and saw two straps on the floor; picked up the larger one and threw it aside to prevent its use; that when he got to the principal's room he picked up a baseball bat to protect himself, but did not try to use it; that While there he tried to explain he had not misbehaved. He claims appellant looked mad. He reported the incident to several persons after school was dismissed. Says he looked at his back in a glass and SaW Stripes making his back look like a flag; it was covered with marks; some of them blue tWo days after the incident, and in places the blood was clotted; his undershirt Was bloody; that the straps used were about 2 feet long; that appellant struck him about 25 licks before going to the principal's Office, where she whipped him with the larger strap, as did the principal also. He claims that at the time Of the trial there Were marks remaining on him and he was still suffering pain from them. The trial took place on the 12th day of April; the incident happened on the 4th of the same month. The assistant district attorney testified that the boy Was brought to his office on the evening of April 4th, and that he stripped him to his Waist. We quote from him as follows: “He was marked all over his back and arms; blood coming to the surface in a number of places. I did not count them, but there were such marks and bruises in approximately 40 to 45 places. There were marks and whelps all over the boy's back and shoulders, on his neck, arm, and over one eye.” The assistant county health officer said that he had examined the boy On the morning of April 5th; stripped him to his waist; and that he counted 25 stripes on his back, some wider than others and some bursted the skin. He said: “The wounds that had ruptured the skin

showed clotted blood on the surface and there

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203 S.W.—69

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While this doctor was testifying the boy was identified and stripped to the waist, pants rolled up, and examined by the court. The Witness says there was still evidence of bruises on his back, which Were yellowish green, and a number of places where blood was oxidizing; that the Wounds Were Very painful and showed evidence of a severe whipping. He declared that the boy was in average health, With no peculiarities Of Circulation or otherWise. It appeared that at the time of the whipping he was in his shirt sleeves; had on a calico Shirt, undershirt, pants, and drawers of light material. Several other witnesses testified that they examined the boy on the evening of the incident and described his condition in Substance like those referred to above.

Appellant stresses the case of Stephens V. State, 44 Tex. Cr. R. 67, 68 S. W. 281, in which the facts showed that the boy had been whipped with two switches, receiving about 33 licks, causing stripes, bruises, and blue places upon him from just below the hips down nearly to the ankles, but the licks on the shoulders left no marks. He Was Wearing cotton pants, extending down to the ankles, but no drawers, but this fact was not knoWn to appellant. Appellant in that CaSe disclaimed any ill will or anger, but that the Whipping was given alone to enforce discipline. The court said:

“The law confides in the teacher the discretionary power to punish pupils, and exonerates them from punishment unless the whipping is excessive or malicious.”

It further Says:

“It is a presumption in favor of appellant that in correcting a pupil he did so in the exercise and within the bounds of lawful authority.”

[1] The statute (article 1014, Vernon's pen. Code) requires that the punishment be -noderate. There is no further legal definition of the measure or character of the punishment. Necessarily the question of what is moderate punishment in a given case is to a large extent a question of fact. In Whitley V. State, 33 Tex. Cr. R. 172, 25 S. W. 1072, a boy 17 years of age was punished by striking him 60-odd licks and the conviction was sustained; the Court remarking that it was not sound to assume that a pupil might be whipped until he Was Subdued. Other cases discussing the matter are Spear v. State, 25 S. W. 125; Howerton v. State, 43 S. W. 1018; Bell v. State, 18 Tex. App. 53, 51 Am. Rep. 293; Smith v. State, 20 S. W. 360; Hutton v. State, 23 Tex. App. 387, 5 S. W. 122, 59 Am. Rep. 776; Dowlen V. State, 14 Tex. App. 61; Kinnard V. State, 35 Tex. Cr. R. 276, 33 S. W. 234, 60 Am. St. Rep.

47. In HOWerton's Case the opinion Was Written by Presiding Judge Hurt from which we quote as follows:

“If the testimony of Mrs. McGee, who examined the girl a few days after the whipping, be true, we do not feel that we would be warranted in setting aside the verdict of the jury in this case. She says that she examined the girl Tuesday afternoon, after school, and that there was a bruised place on her shoulder that she could not cover with her hand. Other witnesses testify to seeing marks of switching, both on the day it happened and for several days thereafter. The charge of the court required the jury to believe that the punishment was excessive, before they could convict defendant. As above stated, we do not feel that we are authorized to set aside the verdict of the jury. We have found no error in this record, and the judgment is accordingly affirmed.”

[2] The intent with which the whipping Was given Was a matter to Which an accused may testify. Kinnard v. State, 35 Tex. Cr. R. 276, 33 S. W. 234, 60 Am. St. Rep. 47, but his statement Will not be conclusive against other evidence tending to contradict it. In this case there was evidence that the idea of appellant was that the measure of her duty Was not to exercise moderate Correction, but to continue the punishment until the pupil was conquered. This seems also to have been the View of the principal, Who Says that when appellant brought the boy into his room it was apparent that he Was not conquered, and that he authorized further punishment, and continued the punishment himSelf until the child WaS COnquered.

[3,4] Whether the punishment was excessive or not was also a question of fact; at least it was a mixed question involving fact. The fact that the punishment caused injuries which were due to some unusual Condition of the skin of the child would not be chargeable against the teacher in the absence of knowledge of it. Ely V. State, 68 Tex. Cr. R. 562, 152 S. W. 631; but in this case that question is not involved, because the child appears to have been a normal child So far as the healthy condition of his skin Was concerned. His Statement that the teacher was mad is not more conclusive than her statement that she was not. Both are to be construed in connection with the other facts developed and passed on under the rule that the credibility of witnesses is for the court When trying the case Without a jury. These were all before the trial judge. He not only heard the witnesses but examined the boy. Under these circumstances, and in View of the testimony of appellant that her determination was to conquer the boy, we do not feel authorized to disturb the finding Of the trial judge, to whom the decision of the questions of fact and law were committed.

The judgment is affirmed.

PRENDERGAST, J., not sitting.

(83 Tex. Cr. R. 215) GIBSON v. STATE. (No. 4574.)

(Court of Criminal Appeals of Texas. March 27, 1918. Rehearing Denied June 5, 1918.)

Appeal from Harris County Court, at Law; Murray B. Jones, Judge.

E. A. Gibson was convicted of aggravated assault, and he appeals. Affirmed.

J. M. Gibson, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $50.

This is a companion case to that of No. 4573, Frances Harris v. State, 203 S. W. 1089, this day affirmed. The facts and the questions are practically the same in both cases. There is not enough difference, in the mind of the Writer, to justify taking up the questions and reViewing them seriatim.

Following the opinion in the Harris Case, supra, this judgment ought to be affirmed; and it is accordingly so ordered.

PRENDERGAST, J., not sitting.

(83 Tex. Cr. R. 490) WILKIE v. STATE. (No. 4435.)

(Court of Criminal Appeals of Texas. March 6, 1918. On Moti' Rehearing, June 5, .)

1. CRIMINAL LAW 6:552(3)—CIRCUMSTANTIAL EVIDENCE.

Circumstantial evidence, to convict, must be sufficiently strong to exclude every reasonable hypothesis except the guilt of accused. 2. HOMICIDE 6:233—MOTIVE.

Although motive is not always necessary to be shown in a murder trial, yet if existent it is a circumstance to be considered by the jury with other facts.

3. HOMICIDE 3:250 – EVIDENCE – SUFFICIENCY, Circumstantial evidence held not sufficient to support conviction of murder.

4. CRIMINAL LAW (8:306–PRESUMPTION. Presumptions cannot form the basis of other preSumptionS.

Prendergast, J., dissenting.

Appeal from District Court, Guadalupe

County; M. Kennon, Judge.
Alfred Wilkie was convicted of murder,

and appeals. Judgment reversed, and cause

remanded.

Jas. A. Harley and J. M. Woods, both of Seguin, and E. B. Coopwood, of Lockhart, for appellant. Dibrell & Mosheim, Of Seguin, Will G. Barber, of San Marcos, and E. B. Hendricks, ASSt. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted Of the murder Of Mr.S. DOrathea Fischbeck, his mother-in-law, and given 20 years in the penitentiary.

[1, 2] The case is One purely of circumstantial evidence. There are quite a number of bills of exception reserved to the rulings Of the court. We have not entered into a discussion Of these under the View We take

of the sufficiency of the evidence. The propOsition with reference to the sufficiency of the evidence as applied to cases of circumstantial evidence is so well settled by SO many decisions it is useless to discuss the legal aspect further than to State the evidence must be Sufficiently Strong to exclude every reasonable hypothesis except the guilt of the accused. Motive is not always neCeSSary, yet if existent is a CirCumStance to be considered by the jury in connection with the other facts. The cogency of the motive is to be determined also by the evidence. If there be motive in this case, it is found under the following statement: Appellant had bought from Mr. Fischbeck during his lifetime a tract of land for which he gave his note for $11,000 as unpaid purchase money. This was due in January, after the homicide On the 5th of December. Mr. Fischbeck had died in June, before the homicide Of his Widow in December. The Contention Of the state is that appellant was anticipat

|ing trouble With his mother-in-law, who was

left the Sole heir by the Will of her deceased husband; that he might be pressed by her On account of the unpaid purchase price. Evidence was introduced that sortiething like six weeks prior to the homicide appellant and his wife visited Mrs. Fischbeck, and there Were COnVersations betWeen MrS. Wilkie, wife of defendant, and her mother, Mrs. Fischbeck, in which appellant did not directly engage; that his Wife Would talk to her husband and then to her mother, not in the presence of each other; but these matters Seemed to have been Settled, and appellant and his wife remained at the residence of Mrs. Fischbeck at least one night, and their relations seemed to be pleasant. So far as the record shows there was nothing to break this pleasantness after this visit; also this Was the last Visit that appellant and his wife paid to his mother-in-law, the deceased. There is but little, if any evidence that would seem to justify the conclusion that Mrs. Fischbeck, deceased, intended to prers her SOn-in-law for this m0ney.

On the evening prior to the homicide, at night, appellant and a Mexican left his home in the edge of Caldwell county and went to the Village of Martindale, reaching there about Sunset, and from there they went to another Village called Limerock. He and the Mexican, Pena, were in a hack. The evidence is not clear as to the exact time the parties left LimerOck, but the preponderance Of the evidence indicates it was about Or later than 9 O'clock. SOme Of the evidence is positive that it was about 9:30 o'clock. It Was about 3 miles from Limerock to the point Where it is claimed appellant got Out of the hack; the scene of the homicide being something like 34 mile from where the hack is supposed to have stopped. The killing oc

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curred along about 9:30, at least between 9 and 10 o'clock. It had been raining, and the Country was black land and muddy. There are a great many statements by the Mexican, Pena, who subsequently turned State's evidence, or at least testified for the state, to the effect that appellant did not have a gun in the hack with him, and that On their return home from Limerock they did not stop at any point. These statements Of the Mexican Were reiterated to different people and officers. Subsequently, however, for Some reason, he changed his testimony, and On the trial testified that he and appellant did Stop the hack; that appellant got out, and for the first time he Saw a gun, which appellant got out of the bottom of the hack, and then Went aWay; that he Was gone awhile and returned. There is other testimony showing appellant did not have a gun in the hack, and also testimony by his Wife and daughter to the effect that he owned but one gun, and that it remained at home and his Wife used it in hunting that evening. From this point on the state's case hangs mainly around tracks. From where the hack is supposed to have stopped to the place of the homicide no foot tracks Were found until within a short distance of the residence of Jechow, where Mrs. Fischbeck was shot. Near that house was found the next morning barefoot tracks. Appellant Was Wearing. ShoeS. These barefoot tracks went close to the house and left in a different direction from their approach. After leaving the house these tracks crossed a lane and muddy low place going in the direction of where Mexicans resided. The tracks seemed to have been lost at this point. Barefoot tracks resembling those found near the residence of Jechow Were later found some 700 Or 800 yards from the scene of the homicide inSide on the farm of a Mr. Bauerschlag. These tracks went Within a short distance of the gate of Mr. Bauerschlag and were lost. There were no measurements of the tracks and no measurements of defendant’S foot, and the only testimony that indicates it might have been the bare foot of appellant was that the tracks indicated a large foot, and that appellant wore about a No. 9 or 10 shoe. There is evidence that at a certain Wire fence Some One went through the fence and evidently got on the ground with one knee. There was a hole found in the ground On the Opposite side from where the party was getting through the fence. The state relied upon this hole as One Of the circumstances against appellant because the gun had mud on it. Witnesses testified this hole might have been made by a gun or stick, or anything of that Sort that could have made Such a hole. What time appellant reached home that night is not clear, but about 2 o'clock parties Went to appellant's house and arrested him and the Mexican. At the time they reached ap

the hack to take his wife and daughter to the scene of the death of his mother-in-law; he having been advised of her death over the phone. Appellant and the Mexican had no way of communicating with each other after the arrest that night Out Of the hearing Of the officers. They were taken prisoners and kept prisoners from that time. They were in the custody of the Officers, and Were carried that night to the Scene of the homicide and thence to jail. Appellant's wife and daughter testified that he did not have his gun with him on this occasion, and that his wife used it in shooting birds that evening and got a little mud On it. The Officers testified that on the barrel of the gun they found a small quantity of mud or black dirt. [3,4] We are of opinion that this evidence does not show, under the rules of circumstantial evidence, that appellant and no one else killed deceased. Whoever did the killing the facts show that they did it by going to the house and making a noise which attracted the attention of those inside, who were deceased, JechOW and his Wife, the youngest daughter of deceased, at whose house she was waiting for the return of her two sons Who lived With her in her residence SOmething like 100 or more yards away. It would hardly be questioned under the cirCulmstanceS Stated that the party Who Shot Mrs. Fischbeck was guilty of a cold-blooded assassination. She was an elderly lady, and When She Went to the dOOr WaS Shot to death by an assassin from the Outside. The jury evidently more than Seriously questioned the guilt of the defendant, else this verdict for 20 years would scarcely have been rendered. This evidence does not exclude every reasonable hypothesis except the guilt of the defendant. Outside of the witness Pena's testimony there is nothing to show that appellant had a gun, and Pena denied this fact for quite a while after being placed in jail. Other witnesses testified, who seemed to have noticed the hack, that appellant did not have a gun with him that evening. His Wife and daughter also testified that he did not have a gun. If appellant left the hack with the Mexican and went away half a mile to the scene of the homicide, the land being . black and muddy, he could have been traced, or Ought to have been traced, by foot tracks. He was wearing shoes. There is nothing to indicate that he got rid of these shoes and became barefooted, or when he again placed those Shoes On his feet. If he left the hack With the shoes on he had to get rid of them at some point before reaching the house where the homicide was committed, if he fired the shot. There is no attempt to account for this by any fact or circumstance. The Mexican does not attempt to account for it, and no physical facts on the ground are put in evidence in this connection. In fact, the trackS Were Only Seen near the house

from it barefooted. The fact the party getting through the fence got on his knee in going through and there Was a hole found that indicated it might have been made by a gun or a stick might be a circumstance, if connected properly. The fact that there was a hole made in the ground would not indicate that defendant made it, nor that a gun made it. To say that that hole in the ground was made by a gun would be but a presumption, and to say that it was appellant's gun would be another presumption without basis. One presumption based upon another presumption and both presumptions based upon facts that are hardly tangible ought not to form the basis of a link in a chain of circumstances. Presumptions cannot form the basis for other presumptions. There is another fact that COuld have been proved if true, and no reason is assigned Why it was not proved. The party who went to the house unmistakably and unquestionably Went through black muddy soil and on leaving through a lane and a low place where mud was soft and Something like knee-deep. The party who made those tracks and Went through these muddy places evidently carried Some of the mud away on his person and ClOtheS. This record iS Silent With reference to that matter. Appellant was arrested about 2 o’clock that night. There was no attempt at any time to investigate his clothes as to this matter. There Was nothing to indicate that there was mud on his clothes, and no account given why this phase of the Case Was not investigated. It Was One of the most, if not the most, important of the facts connected with the tracing of the guilty party. There was no attempt, So far as this record goes, to show from any source whether or not appellant's clothes were muddy, or his feet were muddy, or his shoes were muddy, or that he was in any way shown to have been in position to have made the tracks and gone through the mud that the assassin eVidently and necessarily did. The record is very voluminous, and deals a great deal in matters unnecessarily prolix, but the Salient features are about as stated. We are not satisfied that this evidence excludes every reasonable hypothesis except defendant's guilt, and especially in view of the fact that existing facts shown by this record could have been proved or accounted for in some way that would have tended to identify the guilty party. It might be Suggested in this connection also that so far as motive is concerned one of deceased's sons might be equally charged with motive. He had forged her name to a check, and she had stopped its payment and ordered the bank not to accept any more checks unless She signed them. This son is shown by this record to be a fugitive from justice. It may be that he was not running from guilt With reference to this matter. It is also ShoWn that this son employed two Mexicans to kill appellant subsequent to the death of his mother. They un

dertook it. Appellant killed one of them, and the other went to the penitentiary, and the son got out of jail and became a fugitive.

There is another circumstance which tends to weaken the state's case, and it is this: The evidence shows that appellant had not visited his mother-in-law’s residence Since Some time in October, about Six WeekS Or Such matter prior to the homicide, and the evidence fails to show that he was aware of her habits and custom at night When her Sons Were away from home, two of whom lived With her at her home. It is not shown that he knew that his mother-in-law WaS not at home that night, but at her son-in-law's, Jechow's. The assassin must have had some knowledge of these facts, because there is nothing to indicate that the slayer. Went to her residence, but that he went direct to Jechow's residence. Take the case as it stands, we are not satisfied to affirm this judgment on this testimony, and especially in view of the fact that many things could have been proved if they applied to defendant Which Were not proved. Some of them have been mentioned. It is thought unnecessary to go further into detail.

Because the Verdict is not supported under the rules of circumstantial evidence, this judgment will be reversed and the cause remanded.

PRENDERGAST, J. I cannot agree to this reversal. I am of the opinion the evidence is amply sufficient to meet every requisite of circumstantial evidence, and to Show that appellant, and no one else, killed deceased.

On Motion for Rehearing.

DAVIDSON, P. J. The contention of the state on the original submission and on the rehearing, as we understand, was that the state's case would have been stronger had it been shown that appellant had mud on his person and clothes on the night of and following the homicide. It is a basic proposition in the case that the party who did the killing walked through black muddy soil for some distance, and that some of this mud Was Soft and deep, so much so that tracks could not be discovered by reason of the fact the SOft mud covered them. It Was a very prominent fact throughout the case that such was the COndition Of the COuntry about the scene of the tragedy, and that it had been raining heavily. This was testified by all the witnesses who testified in regard to this phase of the case. It was known the night of and before the homicide that this was the condition of the country. It was also known at the time of and before appellant's arrest the night of the homicide. The state undertook to follow tracks through this mud, and it is claimed that in some places where they expected to find tracks the ground was too muddy and soft to leave impression Of foot trackS.

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