This conviction is for an aggravated assault and battery. The facts are, substantially, that defendant was a school teacher conducting a school; that the party.assaulted, one W. Z. Hugent, a boy nine years of age, was a pupil in said school. This boy fought with other boys, but the fighting occurred away from the school "house, and not during school hours. Among other rules of the school was one prohibiting the students from fighting. When it came to the knowledge of the defendant that this pupil and other pupils had been engaged in fighting, he punished all so engaged for a violation of said rule, by whipping them. He whipped the pupil, W. Z. Hugent, with a switch of reasonable size, and struck him about nine licks on the legs, inflicting no severe bruises, abrasions or other serious injury. These are the facts upon which this conviction is based, and in our judgment they do not sustain the conviction.
Our law wisely provides that the exercise of moderate re-r straint or correction by a teacher over a scholar is legal,—does not constitute an assault or battery. (Penal Code, art. 490, sub. div. 1.) It is not shown by the evidence that the correction ad-' ministered by the teacher to his pupil in this instance was immoderate. It was merely an ordinary whipping with a small switch, such as many parents inflict upon their refractory boys, and such as should perhaps be more common among parents and teachers. That the punishment was inflicted for an infrac- i tion of a rule of the school, which infraction was committed! away from the school house, and not during school hours, did 1 not deprive the teacher of the legal right to punish the pupil for such infraction. (Bouldin v. The State, ante, p. 172.)
*388Opinion delivered May 25, 1887.Believing this conviction to be contrary to the evidence and the law, the judgment is reversed and the cause remanded.
Reversed and remanded.