In his motion for rehearing, appellant insists that we were in error in holding the evidence sufficient to make out a case of aggravated assault. We are unable to agree with this contention, but observe that if the jury had merely found that there was only a simple assault committed, instead of an aggravated assault, it could not have in any way affected the matter involved. The issue was as to whether or not appellant was a delinquent child, and under our statute on the subject, he became such delinquent when he violated any law of this State. See Acts of the Fourth Called Session of the Thirty-fifth Legislature, Chapter 26. A simple assault is as much a violation of the law of this State as is an aggravated assault, and, therefore, in either event, the verdict of the jury must have been that appellant was a delinquent child. We do not see how any harm could have resulted to appellant. The penalty fixed by the jury was for delinquency, and it was based on the facts before them, and whether the offense made by the facts be called by one name or another in the statutes, the facts themselves would be unchanged, and would, therefore, have called for the same penalty at the hands of the jury. It is so, both by statute and numerous decisions, that under a charge of aggravated assault in this State, a conviction may be had for simple assault. *Page 280
The record in this case showed that appellant cut one Dudley Keith with a knife. Unless the cutting was in self-defense, appellant was guilty of a violation of the law. If guilty of any violation of the law, he became a delinquent by reason of that fact. Unless, then, he be acquitted, he must be adjudged a delinquent.
The trial court submitted self-defense in his charge, and the jury found against appellant thereon, and the judgment of delinquency was the necessary sequence. The punishment fixed was within the bounds laid in the statute.
The motion for rehearing is overruled.
Overruled.