Flores v. State

235 S.W.2d 653, 155 Tex. Crim. 391, 1951 Tex. Crim. App. LEXIS 1731

• Court: Court of Criminal Appeals of Texas
• Decided: January 17, 1951
• Docket: No. 25068
• Status: Published

Opinion

GRAVES, Presiding Judge.

Appellant was indicted for robbery by assault and was by the jury convicted of an aggravated assault and given a penalty of a $1,000.00 fine and' confinement in the county jail for two years.

This indictment merely charges a simple assault and a robbery thereby. It contains none of the elements of an aggravated assault.

Under the case of Foreman v. State, 57 S.W. 843, on motion for a rehearing, it was held that a charge of robbery by assault with no allegations relative to the use of a deadly weapon, nor further description of the assault, such indictment did not include the elements of an aggravated assault. See Munson v. State, 21 Tex. App. 329, 17 S.W. 251; Huntsman v. State, 12 Tex. App. 619. This matter was fully discussed in the recent case of Tomlin v. State, 155 Texas Crim. Rep. 207; 233 S. W. (2d) 303.

Upon the authority of that case, the judgment in the present instance will be reversed and the cause remanded.