Hughes v. State, 13142.

• Decision Date: 19 March 1930
• Docket Number: No. 13142.,13142.
• Citation: 27 S.W.2d 815
• Parties: HUGHES v. STATE.
• Court: Texas Court of Criminal Appeals

27 S.W.2d 815

HUGHES v. STATE.

No. 13142.

Court of Criminal Appeals of Texas.

March 19, 1930.

Rehearing Denied May 21, 1930.

Commissioners' Decision.

Appeal from Martin County Court; G. A. Glaser, Judge.

P. O. Hughes was convicted of simple assault, and he appeals.

Affirmed.

Thomas & Coffee, of Big Spring, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, simple assault; penalty, a fine of $5.

No statement of facts accompanies the record.

Motion was made to quash the information and complaint because "the same is indefinite and uses two verbs, or part verb phrases, and for the reason that the charging part of the information and complaint makes no sense and charges no offense." It is argued that if this is construed "according to the rhetorical meaning thereof, it is two disjunctive expressions and no connection whatsoever shown between same." It is unnecessary to set out these instruments, which apparently purport to charge an aggravated assault. Without deciding whether they sufficiently charge an aggravated assault, they are deemed sufficient to charge a simple assault, and this was the offense of which appellant was convicted. Flynn v. State, 8 Tex. App. 368; Wilks v. State, 3 Tex. App. 34. In the absence of any exceptions to the manner of submission of the case to the jury by the court in his instructions, and particularly in the absence of a statement of facts, we are not able to say that the failure, if any, to properly charge an aggravated assault was prejudicial error; they being amply sufficient to charge the offense for which the appellant was convicted. Their rhetorical elegance may not be such as to excite the envy of a Lowell or an Emerson, but they were, we think, amply sufficient to plainly inform the appellant that he was charged with a simple assault.

In the absence of a statement of facts, we are unable to appraise the other bills of exception found in the record. 4 Tex. Jur. pars. 166, 167.

Finding no error in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

Opinion on Appellant's Motion for Rehearing.

MARTIN, J.

Appellant in his motion for rehearing contends that this court was in error in holding, as implied by its original opinion, that the action of the trial court in refusing him a severance could not be considered in the absence of a statement of facts. It seems unnecessary to discuss this specific point, since a careful examination of appellant's application for a severance discloses that it is fatally defective. This application was made under article 651, C. C. P., and, after stating in substance that appellant and Vinnie Hughes were charged with an aggravated assault upon the same identical persons and a violation and offense growing out of the same transaction, continues as follows: "That P. O. Hughes desires the use of the testimony of the said Vinnie Hughes, and says he believes that the testimony of the said Vinnie Hughes is material in his defense of his own case and that he will use...