Jones v. State , 20 S.W.2d 1067 ( 1929 )

CHRISTIAN, J.

The offense is aggravated assault; the punishment confinement in the county jail for 120 days and a fine of $150.

It is alleged in the complaint and information that appellant committed the offense on Dave Standifer with premeditated design and “by means calculated to inflict great bodily injury.” Describing the manner of the assault, it was alleged that appellant struck the injured party in the face, in the eyes, and about the head with his fists, and that he “did then and there violently kick and stamp” the injured party in the face, in the eyes, and upon the head with his feet and heels.

Several days prior to the assault, Ralph Jones, a brother of appellant, was in the drug store of the injured party. There were some women present, and Ralph Jones was cursing. Standifer,' the injured party, requested him to desist, but he continued his cursing. Thereupon the injured party forcibly put him out of the store. Later Edgar Jones, and Fred Jones, brothers of Ralph Jones, came to the store and demanded that the injured party apologize for his action in putting Ralph Jones out of the store. A wordy altercation-ensued, and Standifer pulled a gun and ordered 'Fred Jones out of the store. The following day appellant and Fred Jones assaulted the injured party. Prior to going to the scene of the assault, appellant and Fred Jones went to a garage and borrowed a tire tool. Entering an automobile, they came upon the injured party as he was going home to supper. They stopped the car, appellant caught hold of the injured party, and Fred Jones struck him with his fists several times. Standifer fell to the ground, and appellant held him while Fred Jones stamped and kicked him in the face. Appellant admitted that he took hold of the injured party, but declared that he did so for the purpose of taking a gun away from him in order that the injured party and his brother Fred Jones might have a fair fight. Appellant’s testimony, if accepted as true, would have led to the conclusion that he was guilty of a simple assault. He denied that Fred Jones kicked and stamped the injured party, and declared that he merely struck him with his fists.

Prior to the filing of the complaint charging appellant with an aggravated assault, appellant had pleaded guilty to a complaint in the corporation court charging him with an affray. He offered a plea of former conviction which appears on its face legally sufficient. The court refused to submit such plea to the jury, and refused to permit appellant to offer evidence of the fact that he had been formerly convicted for an affray growing out of the transaction for which he liad been charged with an aggravated assault. The court submitted instructions covering the law of aggravated assault and simple assault. Error was committed in striking out .appellant’s plea of former conviction. Article 536, Code Or. Proc. 1925 provides:

“A former judgment of acquittal or conviction.in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or infor.mation, in which case the prosecution shall be barred for all grades of the offense.”

While said plea would not operate to relieve appellant from a conviction for an aggravated assault, it was sufficient to defeat a conviction for simple assault. Reagan v. State (Tex. Cr. App.) 51 S. W. 914; Dumas v. State, 48 Tex. Cr. R. 27, 85 S. W. 1058. However, inasmuch as appellant was convicted of an aggravated assault, no injury could have resulted from the action of the court in refusing to-submit the plea of former conviction. White v. State, 9 Tex. App. 390.

Appellant complains of the action of the court in refusing to define “serious bodily injury.” This being a misdemeanor, it was incumbent upon appellant to take proper written exception to the charge of the court and to present a correct special charge covering the subject. Simpson v. State, 87 Tex. Cr. R. 277, 220 S. W. 777. While appellant excepted to the failure of the court to give the charge in question, his requested instruction defining serious bodily injury embodies an instruction to the jury that they should acquit him, unless they believed that he inflicted serious bodily injury upon the injured party. As applied to the allegations of the information, it is manifest that appellant was not entitled to the instruction. It was not incumbent upon the state to show that serious bodily injury had been inflicted upon the injured party, inasmuch as no such averment was contained in the information; it merely being charged that the means used were calculated to inflict great bodily injury. Article 1147, subd. 9, Pen. Code 1925. Hence the fact that appellant may not have inflicted serious bodily injury on the injured party would not within itself have entitled him to an acquittal.

Appellant presented a special charge wherein the jury would have been instructed to acquit him of an aggravated assault if they had a reasonable doubt as to whether he quit the affray after catching the injured party and taking his pistol away from him. If it would have been proper to give this charge, error is not presented, for the reason that it does not appear that appellant excepted to the failure of the court to embody an instruction covering the subject in the main charge. Simpson v. State, supra.

While we have not discussed all questions presented, we have made a careful examination of each of appellant’s contentions. We fail to find reversible error.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.