Barrett v. State

25 Tex. 605

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Roberts, J.

The indictment is in common form for an assault and battery, and the jury found the defendant guilty, and assessed his fine at one hundred dollars; which is the utmost limit of their power in a conviction for a common assault and battery under the Code. The court instructed the jury, that if the defendant committed the assault with a whip, they must find the defendant guilty of an aggravated assault, and assess the punishment appropriate to that degree of assault and battery, (specifying it.) This charge was excepted to by the defendant, and upon this alleged error the conviction is sought to be reversed. There is no statement of facts, and it does not appear that this is all the charge which was given by the judge ón the trial. The general rule is, that when an erroneous charge is given, and there is no statement of facts, the charge will be deemed to have been a harmless abstraction. Had the jury, however, in this case assessed the fine at an amount over one hundred dollars, it would have become material to have considered the correctness of this charge; or, what would have amounted to the same thing perhaps, in one point of view at least, it would have been necessary to have considered whether or not the indictment embraced the charge for an aggravated assault, of which the jury had found the defendant guilty, as would have been indicated by their verdict. As the case stands upon the record before us, we must presume that the court gave an appropriate charge for a common assault and battery in addition to the charge excepted to ; and that the jury found the defendant guilty of a common assault and battery. There is nothing to show that they were influenced in their verdict by this charge, as they did not exceed the punishment appropriate to that offence.

Judgment affirmed.