57 S.W.2d 579

BOYD
v.
STATE.

No. 15620.

Court of Criminal Appeals of Texas.
February 22, 1933.
Appeal from Freestone County Court; A. H. Benbrook, Judge.
Will Boyd was convicted of aggravated assault, and he appeals.
Reversed and remanded.
A. B. Geppert, of Teague, P. O. French, of Fairfield, and Ellen Victery, of Teague, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
HAWKINS, Judge.
Appellant was charged with an aggravated assault upon W. A. Bell; the circumstance of aggravation 
alleged being that appellant was a person of robust health and strength and that Bell was aged and 
decrepit. Subdivision 4, art. 1147, P. C. 1925. Appellant was convicted, and his punishment assessed 
at a fine of $50 and sixty days in jail.

Hallman v. State, 113 Tex. Cr. R. 100, 18 S.W.(2d) 652, it was held that the word "aged," as used in 
the statute, in the absence of some definition thereof, was too indefinite. The only evidence in the 
record which might refer to the averment that the injured party was "decrepit" is found in the 
testimony of Bell, in which he says, "My physical condition is bad and I am not able to perform hard 
manual labor." The statement just quoted was made in connection with describing an injury to his eye 
claimed to have been sustained by Bell at the hands of appellant. The description of his general 
health may have related to such condition at the time of the trial, and not when the assault was 
committed. Knight v. State, 119 Tex. Cr. R. 23, 46 S.W.(2d) 1006.

Bill of exception No. 1 complains that an attorney representing the state in his argument referred 
to one defense witness as "the negro who had been convicted and served a term in the penitentiary," 
in the absence of evidence disclosing such fact. This ought not to have occurred. The trial court did 
all he could to save the situation, by instructing the jury not to consider the statement, but it is 
doubtful if the jury could do so.

Page 580

There are some bills of exception which complain of what appears to be purely negative testimony of 
witnesses who testified that they never saw Bell take a drink of whisky. There is no recital in the 
bills nor in any qualification thereto, which would appear to make this bare negative statement 
admissible.

The judgment is reversed, and the cause remanded.