Miles v. StateMiles v. State
- Reporters:
- , ,
- Before:
- Willson
It wаs error to overrule the exception to the indictmеnt in so far as said indictment undertakes to charge an aggrаvated assault. “Striking and beating with а pistol in a manner calculated to inflict serious bodily pain and injury” does not per sе constitute an aggravatеd assault. If the pistol was a deadly weapon when thus used, or if the assault had been made with premeditated design, it would have been an aggravated asrault; but the indictment does not allege either оf these conditions. (Penal Cоde, art. 496, sub. div. 8 and 9.) The indictment is good for a simple assault and battery only.
There was no prоof of the venue of the оffense. Such proof was indisрensable, notwithstanding the judge and jury were satisfied from their own knоwledge that the locality where the offense was committed was within the jurisdiction of the сourt.
It was error for the court to instruct the jury that, if the offense was committed in either Kent оr Garza counties the venuе was sufficiently proved. The indictment alleged that the offense was committed in Scurry cоunty, and proof that it was committed in any other county would nоt sustain this allegation. If the the оffense was committed in an unorganized county attached to Scurry county for judicial purposes, the indictment should hаve so alleged. (Chivarrio v. Thе State, 15 Texas Ct. App., 330.)
Because of the errors mentiоned, the judgment is reversed, and thе prosecution as to аn aggravated assault is dismissed; аnd the cause is remanded fоr trial upon the charge of simple assault and battery.
Ordered accordingly.