Fegan v. State, 24122.

• Decision Date: 17 November 1948
• Docket Number: No. 24122.,24122.
• Citation: 215 S.W.2d 163
• Parties: FEGAN v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W.2d 163

FEGAN v. STATE.

No. 24122.

Court of Criminal Appeals of Texas.

November 17, 1948.

Appeal from Gregg County Court; Earl Sharp, Judge.

Nathaniel Fegan was convicted of aggravated assault, and he appeals.

Judgment affirmed.

Harvey P. Shead, of Longview, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of an aggravated assault, and by the jury fined $150.00 and given 90 days in jail.

The facts show that appellant and the injured party, among others, were shooting craps during the day of January 24, 1948, at Tramble's Drive Inn in Gregg County. The injured party, Nathaniel Williams, contended that appellant owed Williams' wife one dollar and grabbed up two dollars off the table, later returning one dollar to appellant. This action caused a fight between the appellant and Williams, but they were soon separated and had no further trouble at such time. Later on that night, appellant possessed himself of a .12 gauge shotgun and waited outside this Inn, either to the side or behind a Coca-Cola sign, and as Williams came out of the Inn, he shot him while Williams was running. Appellant again shot Williams, hitting him each time.

Appellant was charged with an aggravated assault under Art. 1147, P.C., subd. 9, thereof, which reads as follows:

"When committed with premeditated design, and by the use of means calculated to inflict great bodily injury."

The charging portion of the information reads as follows:

"* * * that Nathaniel Fegan * * did then and there in Gregg County, Texas, with premediated design and by the use of means calculated to inflict great bodily injury, to-wit; by the use of a shotgun, the same then and there being a deadly weapon, in and upon Nathaniel Williams did then and there unlawfully commit an aggravated assault and did then and there with the said deadly weapon shoot the said Nathaniel Williams against the peace and dignity of the State."

It is now contended that such information is duplicitous and charges in one count two ways or means of committing an aggravated assault. This contention comes too late. There are no written pleadings excepting to or relating to the setting aside of said information found in the record as required by Article 513, C.C.P. We do find, however, a bill of exceptions setting forth a complaint relative to the claimed duplicity of the information in which bill it is shown in the qualification thereof that appellant merely made an oral objection to such pleading and took exception to the court's ruling.

In the early case of Coney v. State, 2 Tex.App. 62, the State charged the accused with committing an aggravated assault: first, that the assault was made with premeditated design; and second, that it was made with a certain deadly weapon, to-wit, a glass beer-tumbler, a means calculated to inflict great bodily injury. In that case it was said:

"The charge of the court confined the jury in their investigation to an assault committed under the 9th subdivision of said Article 2150. The indictment fills the full measure in charging an aggravated assault, `committed with premeditated design, and by the use of means calculated to inflict great bodily injury.' It fully apprised the defendant of the charge against him. It states more than is necessary to constitute the...