In this case the appellant was charged with the offense of committing an aggravated assault on James Samuels, and upon a trial was adjudged guilty of simple assault, and his punishment assessed at a fine of $5.
The complaint of the appellant in this cause is, first, that the verdict of the jury is contrary to the law and the evidence; second, that the court erred in charging the jury that in the event they did not find defendant guilty of aggravated assault and battery, that they might find the defendant guilty of simple assault; third, that as the defendant stands charged with aggravated assault and battery, which offense comes within one of the special causes set out in the Penal Code which makes the offense of assault and battery aggravated, and because the information charges that the offense was committed in the house of a private family, as set out in section 3 of article 601 of the Penal Code, the court should not have charged on simple assault; that the verdict of the jury finding defendant guilty of simple assault is contrary to the law and void for the reason that the offense charged could not be reduced to simple assault as shown by the evidence. That the evidence showed that the offense was committed in the house of a private family. Appellant can not be heard to complain that the court authorized the jury, if they found that he made the assault, to impose upon him a less fine than was authorized by law. It certainly could not have injured him. If the court erred in such charge, it was *Page 515 to the benefit of the appellant — more favorable to him than he was entitled to.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. March 8, 1911.