Skidmore v. State

Citations

• 43 Tex. 93

Syllabus

<p>1. Assault by officer on a prisoner.—An officer when conveying a prisoner to jail, though justifiable in using such force as may be necessary to carry him, is guilty of an offense if he strike him except in his own necessary self-defense.</p> <p>2. Charge of court.—On the trial of one charged with an aggravated assault committed with a pistol, the jury propounded the following question to the court: “Is a pistol a deadly weapon, the size not known, and not known whether empty or loaded?” To which the presiding judge answered : “A pistol is a deadly weapon:” Held, 1st. That whether it was or was not a deadly weapon must depend either on its size or the manner of its use. 2d. That the answer was error, being calculated to injure the rights of the defendant in taking away from the jury the determination of a material fact in the case as presented by the evidence. 3d. That a fine of one hundred dollars could not be held good as a fine for a simple assault, since the verdict was consistent with guilt of a higher grade of offense, and might have been fixed at a less amount, hut for the erroneous answer of the judge.</p>