An unbroken line of decisions in this State hold that under an indictment charging an assault with intent to murder, a conviction may be had for an aggravated assault, although no circumstance of aggravation is alleged in the indictment. In Davis v. The State, 20 Texas Court of Appeals, •302, we gave our views at length upon this question, citing the authorities in support of the same. We adhere to the opinion there expressed and so often announced in other cases, both by our Supreme Court and this court.
The law confides to teachers a discretionary power in the infliction of punishment upon their pupils, and will not hold them responsible unless the punishment inflicted be excessive, or be inflicted merely to gratify their own evil passions. Moderate restraint and correction by a teacher of a pupil is not an offense, but is authorized by the law. (Penal Code, art. 490; Dowlen v. The State, 14 Texas Ct. App., 61; Stanfield v. The State, 43 Texas, 167; 2 Bish. Crim. Law, secs. 880, 881, 886; 1 Whart. Crim. Law, sec. 632.)
Teachers have the right, the same as parents, to prescribe reasonable rules for the government of children under their charge, and to enforce, by moderate restraint and correction, obedience to such rules. This authority of a teacher over his pupils is not, in our opinion, necessarily limited to the time when the pupils are at the school room, or under the actual control of the teacher. Such authority extends, we think, to the prescribing .and enforcement of reasonable rules and requirements even *176while the pupils are at their homes. We find no material error in the charge of the court. We think it correctly and fully explains the law of the case, and there was no error in refusing the special instructions requested by the defendant.
Opinion delivered March 9, 1887.As to the objection to the proposed juror, Burns, we are of the opinion that the court did not err in holding him to be competent. The character of the opinion which said Burns entertertained of the guilt or innocence of the defendant is not such as disqualifies. (Rothchilds v. The State, 7 Texas Ct. App., 519). Moreover it is not shown that any juror' objectionable to the defendant was forced upon him. (Loggins v. The State, 12 Texas, Ct. App., 65.)
As to the teacher’s testimony with reference to the custom of requiring pupils to study at other times than during school hours, we are of the opinion that it was immaterial, and, even if inadmissible, which we do not concede, it could not have affected the result, and was harmless to the defendant.
We find no error in this conviction, and the judgment is affirmed.
Affirmed.
Hurt, Judge, dissents from that portion of this opinion which holds that under an indictment for an assault to murder, in the usual form, a conviction may be had for an aggravated assault. He is of the opinion that the authorities in support of this doctrine are incorrect and should be overruled.