Flores v. State

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

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.