Lee v. State

55 S.W. 814 | Tex. Crim. App. | 1900

Appellant was charged by information with aggravated assault. The jury rendered a verdict of guilty, assessing the punishment at a fine of $25. The court submitted the issues of aggravated and simple assault. The verdict is general, and does not specify of which grade of assault appellant was convicted. Article 751, Code of Criminal Procedure, provides: "Where a prosecution is for an offense consisting of different degrees, the jury may find defendant not guilty of the higher degree (naming it) but guilty of any degree inferior to that charged in the indictment or information." If the issue of aggravated assault alone was submitted to the jury, it would not have been necessary for the jury to specify the grade of offense in case of conviction. Styles v. State, 37 Tex.Crim. Rep.. But where the party is charged with aggravated assault, and the jury determines to convict of simple assault, they should so specify in the verdict. Bowen v. State, 28 Texas Crim. App., 498; Hays v. State, 33 Tex.Crim. Rep.. Where a verdict is so defective and uncertain that the court can not know for what offense to pass judgment, it should be set aside. Guest v. State, 24 Texas Crim. App., 530; Slaughter v. State, 24 Tex. 410; Alston v. State, 41 Tex. 39 [41 Tex. 39]; Senterfit v. State, Id., 186; Lomax v. State, 38 Tex.Crim. Rep.. These authorities are directly applicable to this case. The jury should have stated in their verdict of which offense they convicted, for the fine of $25 was applicable to either degree; being the minimum for aggravated assault, and the maximum punishment for simple assault. Appellant reserved his bill of exceptions, fully presenting the matter. For this error the judgment is reversed and the cause remanded.

Reversed and remanded.