Dowlen v. State

Citations

• 14 Tex. Ct. App. 61
• 1883 Tex. Crim. App. LEXIS 122

Syllabus

<p>1. Aggravated Assault—Evidence.—The prosecution for aggravated assault was based upon a chastisement inflicted by an adult school teacher upon an infant pupil. The prosecution was permitted, over the obj ection of the defense, to prove that the pupil, two or three nights after the chastisement, told his father that he could not sleep, because his hips were so sore it pained him to turn in bed. Held, that this declaration was made too long after the injury to be admissible in evidence.</p> <p>2. Same.—The admissibility in evidence of the declarations of an injured party respecting his injuries is regulated by the following rules: The character of an injury may be explained by exclamations of pain and terror at the time the injury is received, and by declarations as to its cause. When the nature of a party’s sickness or hurt is in litigation, his instinctive declarations to his physician or other attendant during such sickness may be received. Immediate groans and gestures are in like mannercompeten u. But declarations made after convalescence, or when there has been an opportunity to think over the matter in reference to projected litigation, are inadmissible. When subsequent declarations are pait of the case, on which the opinion of a physician as an expert is-, based, they have been received. But held, that the declarations of the injured party in this case do not come within any of the said exceptions.</p> <p>3. Same—Charge oe the Court.—The court charged the jury as follows:. “ 1. When an injury is caused by violence to the person, the intent to injure is presumed, and it rests upon the person inflicting the injury to show the accident or innocent intention. The injury intended may be-either bodily pain, constraint, a sense of shame or other disagreeable-emotion of the mind. 2. When violence is permitted to effect a lawful-purpose, only that degree of force must be used which is necessary to effect such purpose.” Held, correct in the abstract, but erroneous wh