This prosecution was by an information which charged appellant with an aggravated assault, he being an adult male, committed upon the person of one D. H. Wisdom, a child. Appellant was a school teacher and D. H. Wisdom one of his pupils; and it appears by the evidence that the castigation was inflicted on account of a violation of the rules of the school by the pupil.
By the first bill of exceptions it is shown that the prosecution was allowed to prove, over objections, that, two or three nights after the whipping, the injured party told his father that he could not rest or sleep because his hips were so sore that it hurt him to turn over in bed. This evidence was inadmissible, because the statements were made too long, after the infliction of the injury. Mr. Wharton has discussed this subject in one of his standard works. He says: “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, also, the nature of a party’s sickness or hurt is in litiga*65tion, his instinctive declarations to his physician or other attendant during such sickness may be received. Immediate groans and gestures are, in like manner, admissible. But declarations made after convalescence, or when there has been an opportunity to think over the matter in reference to projected litigation, are inadmissible. * * * But where such subsequent declarations are part of the case, on which the opinion of the physician as an expert is based, they have been received.” Whart. Crim. Evi., 8 Ed., Sec. 271. Not coming within any of the exceptions pointed out, it was error in the court to admit the testimony.
Complaint is made, in the second bill of exceptions, of the charges given by the court at the request of the county attorney, in the following terms, viz: “1. When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with 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.”
The proposition announced in the first paragraph, though unquestionably correct in the abstract and declared as law in terms by our statute (Penal Code, Article 485), is not applicable, without further explanation, to cases such as the one under consideration. It has direct application only to acts of “ unlawful violence,” in the first instance, such as are essential to constitute the assaults and batteries defined in Article 484, Penal Code.
But “violence used to person” is not unlawful, and “does not amount to an assault and battery in the exercise of moderate restraint or correction given by law to the parent over the child, the guardian over the ward, the master over his apprentice, the teacher over the scholar.” (Penal Code, Article 490.) In all such cases the law presumes, from the relation of the parties, an entire absence of any criminal or unlawful intent to injure; and, in order to effect lawful purposes, permits the parent, guardian, master, or teacher to restrain and correct the child, ward, apprentice, and scholar. When the teacher corrects his scholar the presumption is that it is in the exercise and within the bounds of his lawful authority, and it does not “ devolve upon him to show accident or his innocent intention. ” Neither is it any criterion of his act or intention that “ bodily pain, constraint, *66a sense of shame or other disagreeable emotion of the mind ” is produced. He has the right, under the law, to inflict moderate corporal punishment for the purpose of restraining or correcting the refractory pupil. But “ where violence is permitted to effect a lawful purpose, only that degree of force must be used which is necessary to effect such purpose.” (Penal Code, Arts. 490, 491.
It being established that appellant was an adult male—that Wisdom, the party alleged to have been injured, was a child— that the former was a teacher and the latter his scholar—that the whipping took place at the time charged in the information, the main question to be determined was, “was the correction or whipping moderate or excessive?” If it be shown that the force is excessive, then, indeed, the rule as to presumed intention may apply; but this presumption of the law is not conclusive even then. Upon this supposed state of the case, the third and fourth requested instructions of defendant, which were refused, presented the law most aptly and fully, and the court erred in not giving them. “If the correction was moderate defendant was not guilty of an assault and battery at all. If it was not moderate, but excessive, he was guilty of an aggravated assault and battery, by having exceeded the boundary'of his legal right as teacher, and placed himself in the attitude of a stranger. It is true the law has not laid down any fixed measure of moderation in the lawful correction of a scholar, nor is it practicable to do so. Whether it is moderate or excessive must necessarily depend upon the age, sex, condition and disposition of the scholar, with all the attending and surrounding circumstances to be judged of by the jury, under the direction of the court as to the law of the case.” (Stanfield v. The State, 43 Texas, 167.)
It was error to give the instruction we have discussed and to refuse the third and fourth special instructions; and the charge as given, which was also excepted to, did not properly and sufficiently present the issues and law of the case.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered April 19, 1883.