Haysv.the State

Court of Criminal Appeals of TexasOct 20, 1894
33 Tex. Crim. 546 (Tex. Crim. App. 1894)
33 Tex. Crim. 54628 S.W. 203

No. 837.

Decided October 20, 1894.

Aggravated Assault — Verdict Insufficient, When. — On a trial for aggravated assault the verdict of the jury was: "We the jury find the defendant guilty, and assess his fine at $10." Held, the verdict is indefinite and insufficient. To have been sufficient it should have stated the degree of offense of which the defendant was found guilty. If he was found guilty of aggravated assault, then the punishment assessed was not that assessed by law.

APPEAL from the County Court of Rains. Tried below before Hon. W.H. TEAGUE, County Judge.

The prosecution was by information which charged an aggravated assault with a deadly weapon. At the trial defendant was found guilty and a fine of $10 was assessed against him; but neither the verdict nor judgment specify whether he was convicted of a simple or an aggravated assault. The verdict is set out in the opinion below.

There is no charge of the court nor statement of facts in the record.

No briefs on file.

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.