Appellant was convicted of an aggravated assault and battery, and his punishment assessed at a fine of $100 and three months imprisonment in the county jail.
The first ground of the motion for new trial complains that the court erred in failing to quash the indictment. The indictment is sufficient.
The second ground of the motion complains of the insufficiency of the evidence. The evidence is sufficient.
Appellant's third ground of the motion for a new trial says the indictment attempts to charge him with the commission of a felony, and that if said indictment be valid, which defendant does not admit, then it was the imperative duty of the court to charge the jury in writing. That while he admits that his counsel agreed that the court submit his charge to said jury orally, defendant submits the legal proposition to the court that this was one of defendant's rights which defendant's counsel could not waive for him, and that defendant in person did not waive said right, and did not know that his counsel had attempted to waive said right. A sufficient answer to this statement is that, there is no bill of exceptions reserved to the failure of the court to give a written charge. While there is no charge in the record, we can not legally presume that one was not given, and if the court failed to charge the jury in writing it should have been reserved by bill of exceptions. Furthermore, *Page 600 it is extremely reprehensible, to say the least of it, for counsel to waive a right and then ask the court for a reversal of the case on their own waiver.
The fourth ground of the motion complains of the introduction of certain testimony, but no bill of exceptions was reserved to this, and same can not be reviewed. The same answer applies to the fifth and last ground of the motion.
Finding no error in the record, the judgment is affirmed.
Affirmed.