Foster v. State , 25 Tex. Ct. App. 543 ( 1888 )

White, Presiding Judge.

Appellant was indicted for an aggravated assault and battery, the circumstances ‘ alleged for aggravation being that he was an adult male and the party assaulted, a child.

Two trials were had in the county court. On the first, appellant was, by the verdict of the jury, found guilty of a simple assault, and was fined twenty-five dollars. Whether a judgment was entered upon this verdict or not is not shown. But the record shows that, when the case was called a second time for trial, defendant pleaded specially former jeopardy and former conviction. This second trial was had before the court, a jury having been waived, and, incorporated in the judgment, are set forth the conclusions of fact and law found by the judge, and the judgment again found defendant guilty of simple assault, and imposed again a fine of twenty-five dollars.

As to the special plea of former jeopardy and conviction, the court in his conclusions finds “that the first verdict acquitted defendant of aggravated assault, but not of simple assault, and that defendant was required (on the second trial we- presume), to plead to simple assault.” The special plea is inartistically drawn, and is substantially defective in failing to set out the indictment and judgment, and these defects would have been fatal had the trial been had in a different forum from that in which the former conviction was had. (Grisham v. The State, 19 Texas Ct. App. 504; Shubert v. The State, 21 Texas Ct. App., 551.) The two trials, however, being in the ame tribunal and in the same case, it seems that really a special plea of former conviction was not required to be pleaded, because the court would take judicial cogizance of all previous proceedings which had been taken in the case (Robinson v. The State 21 Texas Ct. App., 160), and, ascertaining tnat defendant had already once been tried and convicted, would abate a further prosecution because of such prior conviction.

In this case it is clear that defendant had been previously tried, and that a verdict of simple assault had been rendered against him. Whether judgment on the verdict was ever rendered, or whether such verdict was set aside without judgment, does not appear. How, if judgment had been rendered and was not subsequently set aside on motion of .defendant, or for good and sufficient cause, it is evident that the second trial, though for the lesser offense theretofore found, would be unwarranted and void, the former conviction being a bar to the second trial for any offense under the indictment. (Code Crim. Proc., art. 525.)

If the former verdict or judgment was set aside, or the judgment was arrested at the instance of defendant, then, indeed, such former conviction would not avail the defendant, and he would be legally liable to a second trial for the simple assault, the lesser offense previously found by the verdict of the jury. (Robinson v. The State, supra; Code Crim. Proc., art. 724.) But if the court, of its own motion, after the verdict had been returned, discharged the jury, set aside the verdict and refused to render the judgment, then the defendant’s plea of former jeopardy would be proper and available, though the ease was a misdemeanor. (Const., Bill of Rights, sec. 14; Brink v. The State, 18 Texas Ct. App., 344.)

Just how the matter stands with reference to either of the above propositions, we are unable to determine from the record before us. In such a state of uncertainty, we have deemed it but right to reverse and remand the case for further trial. Before doing so, however, it may be well to notice a question made by appellant’s counsel, and which seems to be the main point relied upon" for a reversal,

It is insisted that when an assault and battery is committed by an adult male upon a child, the offense is per se, under our statute, an aggravated assault, and that the accused, so charged and proven guilty, can not be legally proved guilty and punished for a simple assault. (Penal Code, art. 496, subdiv. 5.)

“ The use of any unlawful violence upon the person of another, with intent to injure him, whatever be the means or degree of violence used, is an assault and battery” (Penal Code, art. 484), and unless accompanied by one or more of the statutory circumstances of aggravation, is a simple assault and battery. Such simple assault and battery is necessarily included in every aggravated assault and battery; the former is but a lesser degree of the latter, where the latter is charged. (Penal Code, art. 494.) That a lesser degree is found than that charged by the indictment or information, or than that proven, has never been held ground either for a new trial or reversal. A defendant has no right to complain under such circumstances. (Code Crim. Proc., art. 724.)

Opinion delivered June 6, 1888.

For the errors we have previously pointed out the judgment will be reversed and the cause remanded.

Reversed and remanded.