| Tex. | Jul 1, 1860
This is an indictment for an assault with intent to murder. The offence is charged and proved to have been committed before the Code went into operation, and the trial was afterwards. Defendant chose to be tried under the Code, and was found guilty of an aggravated assault, and his punishment was fixed by the jury at a fine of five hundred dollars, and confinement in the county jail one year. This' punishment was permissible for an aggravated ■ assault under the Code, but was greater than that prescribed for that offence by the law previously. The main error complained of was in the court having permitted the defendant to be tried under the Code according to his selection. The Code, when the penalty is changed by a subsequent law, provides “ that when by the provisions of the second law, the punishment of the offence is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by law in force when the offence was committed.” (Penal Code, Art. 14.)
By the Code, the offence charged was punished by confinement in the penitentiary from two to seven years; and by the previous law from one to ten years. In the highest grade of this offence, the punishment was ameliorated by its limit being diminished two years.
1st. An aggravated assault does not occupy towards an assault with intent to murder, the relation of a distinct separate offence, as larceny to murder, but is included within it as a constituent element of it, as is the case with manslaughter and murder. There are only different grades of unlawful assault, just as manslaughter and murder are different grades of felonious homicide. This in
2d. The court must permit this selection to be made before the verdict is found by the jury, and therefore must allow it in reference to a comparison of punishments attached to the offences as charged, as well as the modifications which' may be comprehended under the offence charged.
How although a common assault and an aggravated assault are included in an indictment for an assault with intent to murder, they are offences entirely distinct from that, with reference to the punishment imposed.
It is alone in reference to the punishment that the offence is spoken of in this article of the Code. Therefore, where there are several offences embraced in the same indictment, as in this case, they must be treated as distinct offences by the court, in instructing the jury upon the penalty attached to each by the law. And it is only when the punishment of some one or all of them is ameliorated by the new law, that a defendant has a right “ to elect to receive the penalty prescribed by the law in force when the offence is committed.” If any one of them, thus included in the same indictment, is ameliorated, he may elect as to that one.
The punishment of the offence, of which the defendant was convicted, an aggravated assault, was greatly increased in both its minimum and its maximum limits. A penalty was imposed by the jury, much greater than that which could attach to the offence when it was committed. This was therefore, as to this offence, not a case in which the question of election arose at all. The defendant never “elects” to be tried under the new law. That follows ah a legal consequence, when the punishment is ameliorated. But when it is ameliorated, then he may elect to receive the penalty prescribed by law when the offence was committed.
Thus the penalty inflicted may be less, but can never be greater than that imposed by the law when the offence was committed. This is plainly the object of the law. (Art. 14, Pen. Code.)
The other questions in the case need not be discussed, as this is sufficient to remand it for a new trial.
Judgment reversed and cause remanded.
Three years was doubtless intended.—Rep.