Key v. State , 12 Tex. Ct. App. 506 ( 1882 )

Willson, J.

The information charges that “Tom Key did make an aggravated assault and battery on W. J. Johnson, with a pistol.” While we think this indictment good for a simple assault and battery, we are of the opinion that it does not sufficiently charge an aggravated assault and battery. • It should allege the necessary acts and facts constituting the offense. If the aggravation consisted in making the assault with a deadly weapon, it should be so alleged. A pistol is not necessarily a deadly weapon. (Hunt v. State, 6 Texas Ct. App. 663.) The deadly character of the weapon must be alleged and proved.

There is a fatal defect in the charge of the court. It instructs the jury, “If you find the defendant guilty of assault and battery you will assess his fine not less than twenty-five nor more than one thousand dollars, or imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment.” This is the punishment prescribed by law for aggravated assault and battery, but not for simple assault and battery. When the term assault and battery is used, simple assault and battery is meant thereby, and the jury would most likely so understand it. The court gave no instructions in regard to simple assault and battery, and the punishment prescribed therefor, notwithstanding the facts of the case manifestly demanded such a charge. The defendant excepted to the charge of the court at the time, and also requested the following charge to be given to the jury: “If the jury believe from the evidence that he .is not guilty of an aggravated assault and battery, or, if they have a reasonable doubt, then they will acquit the defendant of aggravated assault and battery and further consider whether or not he is guilty of a simple assault and battery; and if they believe from the evidence that he is guilty of simple assault and battery, they will fine him in any sum not less than five ■dollars, nor more than twenty-five dollars.” This charge was refused by the court. It was the law as applicable to the evidence in the case, and should have been given. The jury assessed the punishment of the defendant at a fine of fifty dollars, which was the lowest penalty they could assess under the erroneous charge of the court. •

For the errors we have named the judgment is reversed ■and the cause remanded.

Reversed and remanded„