Mathis v. State , 84 Tex. Crim. 347 ( 1918 )

on rehearing.

December 4, 1918.

DAVIDSON, Presiding Judge.

Appellant files a motion for rehearing, contending that the former affirmance was erroneous in that the charge of the court instructed the jury to find appellant guilty of simple assault. That part of the charge is as follows:

“If you believe from the evidence that the defendant is guilty of an assault or an assault and battery, but have a reasonable doubt as to whether such assault and battery was an aggravated assault and battery as that term is defined in paragraph 2 of this charge, you will acquit the defendant of aggravated assault and battery and find him guilty of simple assault or simple assault and battery and assess his punishment,” etc.

We are of opinion that this does not instruct the jury to convict appellant of simple assault, except under the contingencies and statements of the judge. The jury are instructed if they believe he is guilty of assault, and if they should acquit him of aggravated assault, then they should convict him of simple assault, or simple assault and battery. The jury under this charge would first have to determine that he was guilty of assault, or assault and battery, before they could convict. If they determined that he was guilty, then they were instructed if there was a doubt as to whether he was guilty of aggravated assault, they should convict him of the inferior degree. Such charge we think is correct, and was not a charge on the weight of the evidence. He was' acquitted of aggravated assault and convicted of simple assault. This is the only question presented, and we are of opinion it is not well taken.

The motion for rehearing is overruled.

Overruled.