I dissent from the opinion rendered by a majority of the court in this case, and believe that a new trial should have been granted. If the testimony of Bertha Kohnle is discarded altogether, and we take the testimony of Stowe, it shows, at the most, only one lick or blow by the defendant on the person of his step-daughter. No serious injury is shown, and the verdict of the jury assesses a fine of $500 and fifteen months' imprisonment in the county jail; and this verdict, it occurs to me, is excessive. If we consider the testimony of Bertha Kohnle (and she is the prosecutrix in the case), it would appear that the lick was struck with defendant's open hand on account of her refusal to go home when she was commanded to do so by her parent, and that he did not hurt her very much. The evidence shows, at the most, the infliction of a slightly immoderate correction, for which a much smaller punishment than for an aggravated assault would have been commensurate. On the motion for a new trial, appellant presented the affidavits of his wife and step-daughter, Bertha Kohnle, which are as follows, to-wit: "I, Bertha Kohnle, being duly sworn, on oath depose and say that I am the person alleged to have been assaulted by Mr. Frank Inglen, who was indicted, charged with having made an assault and battery upon me. He is my step-father, and has always treated me with kindness. At the time he is said to have struck me, he did so in a fatherly way, slapping me on the cheek with his open hand. It was about 9 o'clock at night, and I was seated on the step of the corner grocery store, about half a block from my home. My father, Frank Inglen, saw me there, and told me to go home. I said 'No,' I would not, and then he slapped me. The slap he gave me was not hard enough to make me cry. It is not a fact, as stated by Mr. John Stowe, that I fell down. I was seated on the grocery step at the time my father came up to me, and he slapped me once, not hard enough to make me cry. My father is a kind and generous man, and has always exercised towards me only that restraint that a child should expect to receive from her father. It is not true that he was violent or excessive in his conduct towards me on this occasion. I did not bleed from any blow received by me, but bit my lip when he struck me so that a drop or two of blood appeared upon my lips. On the trial of the case of the State against my father, I was not asked any questions by the attorney representing my father, and had no opportunity of making a statement as to these facts to the court; but I heard the statements made by Mr. John Stowe, and they are not true. My father did not strike me with violence sufficient to have made a report. Mr. John Stowe could not have heard the slap a block away. The time was night, and it was impossible for him to see my father strike me unless he had been close by. I did not all down on the street from the effect of any blow, nor did I fall at all. Mr. John Stowe is not friendly towards my father. There was a man in the grocery store selling something to a colored man, but they were not attracted to the outside of the store by anything done there by my father to me. If I had been *Page 476 hurt, I should have cried out. I was not hurt. My father had a right, I believe, as my father, to require me to go home, and I was not injured." The affidavit of Mrs. Anna Inglen is as follows: "My name is Anna Inglen. I am the wife of Frank Inglen, and the mother of Bertha Kohnle, who lives with Frank Inglen and myself. Bertha Kohnle was 8 years old when I married Mr. Frank Inglen, and she is now 13 years and 6 months of age. Mr. Inglen has kept her at Weigle's Institute in Germany, in Stuttgart, Ger., and in a school for young ladies in Luxemburg, and has always been kind and considerate to her, caring for her education and doing everything that a father could do for his own child. On the night that he is charged with having struck Bertha, I saw her within a quarter of an hour afterwards, and she told me all about it. She said that she was sitting on the steps of the grocery store; that her father saw her there, and told her to go home — that was no place for a little girl. She refused to go, and he slapped her with his open hand on the cheek. She said that she was not hurt; that she did not even cry. She was with me and my husband that night, as she always is, but she did not complain of his treatment toward her as being violent or excessive and cruel. She thought that he had a right to chide her for being away from home, seated in front of a grocery store, at that time of night, and having told her to go home, she knew he had a right to chastise her as he did. She was not hurt. She had bit her lip slightly, but this was rather because she had her lip between her teeth, and not because he slapped her so violently in the face. I was present upon the trial of Frank Inglen, and would have given this testimony if I had been placed upon the witness stand. At the time of the trial, Frank Inglen, my husband, had been indulging in strong drink, and was under the influence of liquor, and was not in a fit condition to have appeared before the court to have made his defense. He seldom drinks. Several years ago he was struck on the head, and since that time, whenever he drinks whiskey, it deprives him of the use of his sense. He becomes unreasonable and uncontrollable, loud in his talk and incoherent in his ideas. On the occasion of his trial he was not in a condition to understand what was going on. The attorney he had employed did not examine Bertha Kohnle with a view to elicit from her all the facts, and Mr. Frank Inglen then undertook to make his own defense, but was not in a mental condition to represent himself. I was not called for the defendant, although I was there, and ready and expecting to be put upon the stand. The attorney employed by Mr. Inglen left the case, and no opportunity was given to employ another attorney. Mr. Inglen was loud in his talk, and incoherent in his ideas, and created an unfavorable impression upon the court and jury by reason of his intoxication. Defendant's counsel abandoned the case when defendant most needed an attorney to represent him, both by reason of the imperfect, partial, and uncertain evidence given by the witnesses who testified, and also because of the intoxicated condition of the defendant, and the case proceeded to judgment *Page 477 without the defendant having the benefit of legal talent. Mr. Frank Inglen was not of sound mind at the time he was tried, but was insane from the recent and excessive use of intoxicating liquors, and that this was an unusual condition with him, because he seldom drinks at all, but is uniformly a mild and courteous gentleman." From these affidavits it is evident that appellant was perhaps not in a condition to be tried. During the progress of the trial, on account of some misunderstanding between him and his lawyer, he was deprived of the benefit of counsel. His wife was in the court room, and, knowing important facts, was not placed upon the stand at all, and his stepdaughter was not cross-examined on behalf of the defendant. It is further shown that the principal testimony against the defendant, being the witness, Stowe, came from a prejudiced source — Bertha Kohnle testifying that said witness, Stowe, was not friendly towards her father. Under all these circumstances, it does occur to me that some influence besides the facts of the case itself instigated the jury in finding the verdict they did, and that, on the showing made by appellant for a new trial, the verdict of the jury should have been set aside, and a new trial granted him.