Mazurek v. State (75 S.W.2d 92, 1934)

LATTIMORE, Judge.

Conviction for aggravated assault; punishment, a fine of $308 and one year in the county jail.

At a former time the judgment herein was reversed and the prosecution ordered dismissed upon the proposition that the record failed to show the presence of a complaint. The record has been corrected by a proper proceeding in the court a quo so as to show that there was in fact a legal complaint on file and presented at the time this case was tried. By a supplemental transcript, it is made to appear that the lost complaint was properly substituted, and the original opinion of reversal herein will be withdrawn, and the case will now be considered on its merits.

Appellant was charged with an aggravated assault upon W. H. Burns, the ground of aggravation laid in the information being that Bums was an officer in the lawful discharge of the duties of his office, and, while so engaged, this appellant, being informed and knowing that said Bums was then and there an officer in the discharge of an official duty, made upon him an aggravated assault. Mr. Burns testified to facts which appear to support the conviction. He was supported by other witnesses. Eact issues are presented in the record involving questions as to whether appellant was intoxicated or under the influence of intoxicating liquor at the time of the difficulty; also whether or not he struck Bums while he (Burns) was making an effort to arrest appellant. Appellant introduced witnesses who testified that they did not believe he was drank, but we notice that these witnesses, or some of them, seem to admit that appellant struck Mr. Burns several times while the latter was trying to effect an arrest.

Appellant has five bills of exception. The first calls in question the propriety of the reception of the evidence of Dr. Irving, who said he examined Mr. Bums the morning after the alleged assault and found various contusions, lacerations, and scratches about the face of Burns, and that his breastbone was bruised. If we understand appellant’s objection. to this testimony, it is that the record supports the proposition that other persons struck or struck at Mr. Burns during the difficulty in which it is claimed that appellant assaulted him. We do not quite catch the force of appellant’s objection, since it was in testimony by a number of witnesses that appellant did strike the sheriff one or more times bn said occasion. That the officer may have been struck by other people at the same time would not seem to relieve appellant of g