Flynn v. State

8 Tex. Ct. App. 368

• Court: Court of Appeals of Texas
• Decided: July 1, 1880
• Status: Published

Opinion

Winkler, J.

The appellant was prosecuted on affidavit and information in the County Court, and was convicted of an aggravated assault and battery upon one David Lynch, and subjected to a fine of $500.

The judgment must be reversed for the reason that the information is defective and insufficient to support the verdict and judgment, in that it does not charge, by appropriate averments, any higher grade of offence than a simple assault and battery. The information, besides averments as to the time and place of the commission of the offence, charges that the defendant “ did, then and there unlawfully and with a certain knife and a certain piece of board or stick of wood, and with his fist, strike, beat, and wound the said David Lynch ; that at said time and place, and in the manner and form aforesaid, the said Patrick Flynn did commit an aggravated assault and battery upon the person of said David Lynch.”

The statement that the defendant committed an aggravated assault and battery, without stating the circumstances of aggravation, will not suffice. The circumstances under which an assault or an assault and battery becomes aggravated, ten in number, are clearly set out in the Penal Code, art. 496, no one of which is set out in the information. It therefore will not support a conviction for an aggravated assault and battery, or any higher grade of offence than a simple assault and battery, the punishment for which is less than that imposed in the present case ; and for this reason the judgment is reversed and the cause remanded. We see no material error in the charge of the court except as to the amount of punishment; as to which the jury should have been confined to that of a simple assault and battery.

Reversed and remanded.