Appellant was charged with an aggravated assault upon his stepdaughter, was convicted and his punishment assessed at fifteen months in the county jail, and a fine of $500, and *Page 473 appeals. The girl testified that she was 13 years of age; that she was sitting on the steps of a grocery store, a short distance from the family residence, when the defendant approached her and ordered her to go home. This she refused to do, whereupon he struck her with his open hand. When he ordered her home, she asked the question, "Where is mamma?" and he then struck her. She testified that the blow did not knock her down. J.N. Stowe, a witness for the State, testified as follows: "I saw the defendant strike Bertha Kohnle (the assaulted party) on the occasion she has just testified about. I live in the house next to the house then occupied by the defendant and his family. That night the defendant came home under the influence of liquor, smashed up the furniture, and broke some dishes, and ran his family out of the house. Bertha Kohnle went to the grocery store, carrying one baby in her arms and pulling another small child along by the hand. The defendant then went to the grocery store, and, when he got there, Bertha Kohnle was standing on the steps of the grocery, and I saw him strike her. I also heard the blow. It knocked her down. He struck her in the face. Afterwards she came back to my house, and I saw that she was bleeding at the mouth. That grocery store is about one hundred and fifty feet from my house, where I was, and on the opposite side of the street. Bertha Kohnle is a girl, and is the defendant's stepdaughter. Defendant is a full-grown man." One Tidd testified for the state as follows: "I saw Bertha Kohnle at the house of the witness, Stowe, soon after she is said to have been struck by the defendant, and when I saw her she was bleeding at the month. After washing her month with a wet towel, it still continued to bleed. I didn't see defendant strike her, but, at the time he is said to have struck her, I heard what I took to be the sound of a blow." Frank Inglen testified for himself: "Bertha Kohnle is my stepdaughter, and lives in my house, and I support her. I slapped her with my open hand, on the steps of the grocery store, on the occasion as has been testified about. I am very fond of her, and didn't think it proper for her to be away from home at the grocery, store at night. I told her to go home, and, because she would not, I slapped her, as I considered I had a right to do. I didn't see her mouth bleed. I didn't strike her for my reason, except, to make her go home." Pollinard, a witness for the defendant, testified also as follows: "I saw the defendant strike Bertha Kohnle on the occasion that has been testified about here. He struck her somewhere in the face." This is the statement of the facts. It is contended by the appellant that under this testimony the verdict of the jury was excessive. The statute assesses the punishment (this being an aggravated assault and battery) at a fine of not less than $25 nor more than $1,000, or by imprisonment in the county jail not less than one month nor more than two years, and the jury may impose both fine and imprisonment. There is a conflict in the testimony. If what the girl swore was true, the blow given was not so severe as that testified to by some other witnesses. If the version of the matter given by Stowe and Tidd be true, *Page 474 then this was a wanton and very violent assault made upon the girl. Stowe states that the blow knocked the girl down, and that she bled. Tidd heard the blow, and saw the girl wash the blood out of her mouth with a wet towel, and the blood continued to flow. The defendant's witness, Pollinard, also saw the lick, and he says that he struck her somewhere about the face. The contention of the appellant is that he had a right to chastise the girl for disobeying him. There is another very important fact bearing upon this subject: Stowe says, "That night defendant came home under the influence of liquor, smashed up the furniture and broke some dishes, and ran his family out of the house." When Bertha Kohnle was commanded by defendant to go home, she refused and asked, "Where is mamma?" Evidently her mother and herself had been driven away from the house, and she did not wish to return until she was sure that her mother was at home, or else knew where she was. The defendant knew that he had driven his family from home in a very violent manner. It was natural for the girl to stop at the grocery store, and it was quite reasonable for her to be solicitous about her mother. While defendant may have had the right to order her home, under the circumstances of the case, he had no right to assault her because she did not obey him, for, by his own conduct, he justified a refusal on the part of the girl to go home. Concede, as above stated, these facts to be true; appellant was guilty of an unprovoked, violent assault and battery upon the girl. It was unnecessary, and, in fact, conceding that he had a right to chastise her, it was clearly and unquestionably more severe than the law would permit. We are of opinion that this court has no authority, under the circumstances of this case, to say that the verdict was excessive. The law permitted it, and in fact he could have been awarded much greater punishment than was assessed by the jury. The jury could have imposed a fine of five hundred dollars in addition to that assessed, and nine months' imprisonment in the county jail more than that given. It is contended, however, that this excessive verdict, so called, was brought about by the conduct of the defendant while being tried. What that conduct was, we are not informed, except by the defendant's motion for a new trial. This motion is supported by the affidavit of the wife and step-daughter of the defendant. It is very remarkable that the affidavit of no bystander was obtained. It appellant was drunk when called upon to announce "ready," he had counsel, and this matter was not called to the attention of the court in any way. No motion to postpone or continue the case was made, and for the first time it is brought forward in the motion for a new trial. Appellant testified in the case, and, so far as this record is concerned, his testimony is as intelligent as any of the other witnesses. There is nothing is his testimony tending to show that he was drunk, or that anything else ailed him. We are of opinion that the judgment should be affirmed, and it is accordingly done.
Affirmed.
DAVIDSON, Judge, concurs. *Page 475