Winzel v. State

83 S.W. 187, 47 Tex. Crim. 267, 1904 Tex. Crim. App. LEXIS 288

• Court: Court of Criminal Appeals of Texas
• Decided: November 16, 1904
• Docket: No. 2938.
• Status: Published

Opinion

DAVIDSOH, Presiding Judge.

Two questions are suggested for reversal; first, the indefiniteness of the verdict; and second, the error in the court’s charge. The allegation was that the aggravated assault was committed with a hoe handle inflicting serious bodily injury. The court charged the jury, if they so believed they would convict; and also charged them to convict if they believed the assault was committed with premeditated design. There was no authority under the pleading for the submission of the second proposition. This, of course, was error. Grayson v. State, 42 S. W. Rep., 293; Hunt v. State, 9 Texas Crim. App., 404; Kennedy v. State, 9 Texas Crim. App., 399; Reed v. State, 9 Texas Crim. App., 472; McGee v. State, 5 Texas Crim. App., 492.

In regard to the first proposition the charge was aggravated assault, inflicting serious bodily injury by the use of a hoe handle. The court submitted aggravated assault and simple assault. Hie jury returned a verdict assessing the punishment at a fine of $25. Heither the verdict of the jury nor the judgment state the offense of which he was convicted whether aggravated or simple assault. This should have been done. Hays v. State, 33 Texas Crim. Rep., 546; Franks v. State, 4 Texas Crim. App., 431; Bowen v. State, 28 Texas Crim. App., 498; Cooper v. State, 20 S. W. Rep., 979. Had the court submitted only the issue of aggravated assault, the verdict would have been responsive and sufficiently definite; or had the court only submitted the issue of simple assault, the verdict might have been sufficient. But both degrees were submitted, and the jury failed to specify the degree. The judgment is reversed and the cause remanded.

Reversed and remanded,