Appellant insists that he was entitled to have the jury instructed upon the law of aggravated assault.
The indictment charged only simple robbery. There is no allegation that the assault was committed with a deadly weapon. Under such an indictment, aggravated assault is not an included offense. Foreman v. State, 57 S.W. 843.
The facts fail to reflect that appellant's confession was obtained in such a manner as would show that it was not voluntary. The most that can be said is that only an issue of fact upon the question of voluntariness was shown by the evidence. It was, therefore, proper for the trial court to submit that issue to the jury.
We remain convinced that the case was correctly disposed of originally, and appellant's motion for rehearing is overruled.
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. *Page 282