25 Tex. Ct. App. 111 | Tex. App. | 1888
This appeal is prosecuted from a conviction for aggravated assault. Omitting the formal allegations, the information charges “upon the affidavit herewith filed of Matilda Jones, that the said George Robinson * * * did make an assault upon her, the said Matilda Jones, the said Robinson being then and there an adult male, and the said Matilda Jones being then and there a female.” The affidavit charges that George Robinson “did then and there unlawfully make an assault upon her, the said Matilda Jones.”
It was insisted, upon motion in arrest of judgment, that the affidavit did not support the information, in that it did not charge that Robinson was an adult male. The objection to the complaint is that it charges only a simple assault, and that the infor. mation charges an aggravated assault.
We have examined the cases decided by this court bearing remotely upon this question, but find no authority from any of them to authorize the State’s counsel to present a different offense from that charged in the complaint. Aggravated assault has its elements, and is a different offense from what is known as a simple assault; and an information for this offense must be based upon a complaint charging such offense in substance.
The evidence fails to support the verdict, because it is not shown that the defendant was an adult male. While the age of the accused may be proven by circumstantial evidence, still there must be evidence clearly showing that the accused was, at the time of the assault, an adult male. This record furnishes no proof upon this point.
The verdict fixed the punishment at a' fine of five hundred dollars and twelve months in the county jail. In view of the evidence found in the record before us, we are of opinion that the verdict was excessive, .and that the court should have awarded defendant a new trial upon this ground. The judgment is reversed and the cause remanded.
Reversed and remanded.