On a previous day of this term the judgment was affirmed. It is again insisted, as on the original submission, that in order to constitute aggravated assault, the alleged ground that appellant went into the house of the assaulted party, that it is not sufficient to show that he went upon the gallery of the house and there committed the assault. The authorities in support of the motion, to wit: Ferguson v. State, 4 Texas Crim. App., 156; McGregor v. State, 4 Texas Crim. App., 599; McGee v. State, 5 Texas Crim. App., 492, and Kennedy v. State, 9 Texas Crim. App., 399, are not in point. Those cases are based upon a variance in the testimony, to wit: where the indictment charges one ground of aggravation, the proof shows another. That question, in our judgment, is not involved in this case. Here the only question involved on this phase *Page 604 of it was whether or not going upon the gallery and making the assault was going into the house. We have reviewed this question at the earnest solicitation of counsel for appellant, and believe the conclusion reached in the former opinion is correct. We deem it unnecessary to discuss the remaining question, to wit: The requested instruction refused by the court. We are still of opinion that the charge given sufficiently covered this question, and practically covered the identical question. The motion for rehearing is overruled.
Motion overruled.