In the first paragraph of his charge the court told the jury that appellant was charged by complaint *Page 484 and information in three counts with the offense of aggravated assault. In his motion for rehearing appellant insists that in view of said reference to the three counts, the case was submitted in such language that it authorized a conviction under the second count, which appellant contends did not charge an aggravated assault.
The first count charged that appellant drove a truck upon a designated highway "and did then and there commit an aggravated assault in and upon the person of Robert N. Sullivan by then and there wilfully and with gross negligence colliding with and causing injury to the person of the said Robert N. Sullivan," who was then and there upon the said highway. In no other count does the word "wilfully" appear. The court in his charge told the jury in substance that the driver of a motor vehicle upon the highways who "wilfully" or negligently collided with and caused injury less than death to another was guilty of an aggravated assault. Such definition of aggravated assault is found in article 1149, P. C. (1925). No other definition or character of aggravated assault was mentioned in the charge. The court defined gross negligence and "wilfully" in connection with the definition of aggravated assault. Having done this, we are not inclined to the view that the second count was submitted, or that the jury could have predicated a conviction of aggravated assault upon that count, the elements of which were in no way explained and were not mentioned at any time save in the first paragraph of the charge, and then only as heretofore indicated. It would not have been inappropriate to give the special charge which was requested by appellant but we think the failure to do so should not be held reversible error when the instructions given are considered in their entirety.
The offense was alleged to have been committed on October 17, 1932. The information was filed on June 7, 1933. The court authorized the jury to convict for any offense committed at any time within two years prior to October 17, 1932. This, of course, was erroneous. The time should have been restricted to two years prior to the the filing of the information. However, in view of the fact that the date of the transaction was not in issue and was shown unquestionably to have occurred on October 17, 1932, within the period of limitation, and no other transaction of similar kind being shown, we think a reversal should not be predicated upon an error which could not possibly have harmed appellant. We are referred to Todd v. State,69 Tex. Crim. 610, 155 S.W. 220, on the point last mentioned.
We think the reversal in Todd's Case was not predicated on *Page 485 the matter under consideration. The court says in the third paragraph of the opinion that "another question issuggested for reversal" but says the error was not a very serious matter in the particular case. The judgment was reversed for the errors discussed in the first and second paragraphs of the opinion.
Believing proper disposition was made of the present case originally, the motion for rehearing is overruled.
Overruled.