Hays v. State

28 S.W. 203, 33 Tex. Crim. 546, 1894 Tex. Crim. App. LEXIS 161

Opinion

• DAVIDSON, Judge.

The charge contained in the information was .aggravated assault. The verdict reads as follows, to wit: “We the jury find the defendant guilty, and assess his fine at $10.” It is contended the verdict is too indefinite and uncertain to form the basis of .a judgment. We are of opinion the contention is correct. Where •the offense charged consists of degrees, the jury should at least state -in their verdict the degree of which they find the accused guilty. Aggravated assaults include simple assaults. The fine for aggravated assault can not be less than $25, and the punishment for simple assault can not exceed that amount. The fine in this is $10. The verdict does not in terms acquit of the higher, nor does it specify the less, offense. There was no charge given the jury, nor is there a statement of the facts found in the record. If presumptions be indulged, it would be held that the conviction was for the offense stated in the pleadings. The fine, in this view of the case, would be illegal.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.