Pederson v. State , 21 Tex. Ct. App. 485 ( 1886 )

Willson, Judge.

It is charged in the information that one Herman Ars did assault one J. L. Rierson, at the house of the private family of said Rierson, and that the defendant Pederson was present at the time, and, knowing the unlawful intent of said Ars, did aid by acts, and encourage by words and gestures, the said Ars in the commission of said assault. The charge of the court instructed the jury that the defendant was upon trial under this information for the offense of aggravated assault, and proceeded to explain the law governing that offense. The issue of defendant’s guilt of a simple assault was not submitted by the charge of the court. The jury found the defendant guilty, as charged in the information, and assessed the punishment at a fine of twenty-five dollars.

In our opinion the information does not charge an aggravated assault, but only a simple assault. An assault becomes aggravated “ when the person committing the offense goes into the house of a private family, and is there guilty of an assault and battery.” (Penal Code, Art. 496, subdiv. 3.) He must go into the house, or be in the house, and he must not only commit an assault, but a battery also. He may go into the house and commit an, assault, but such assault is not aggravated under this subdivision of the article cited, unless he, at the same time and place, commits a battery. These are the plain words of the statute, and can not be so enlarged as to make a mere assault, committed in the house of a private family, an aggravated assault.

It will be further observed that the information does not charge that the assault was committed in the house, but at the house of Rierson. It might have been committed at the house, though out side of the house. To make it an aggravated assault the person ■ committing it must have gone in to the house, and there committed it.

The charge of the court was not warranted by the allegations in the information, and the conviction, which is for an offense not charged in the information, was in response to such erroneous charge. The information would support a conviction for a simple assault, but not for an aggravated assault.

Opinion delivered June 9, 1886.

The judgment is reversed and the cause is remanded.

Reversed and remanded.