The appellant is charged by complaint and information with an aggravated assault against Maydell Holloway, he being an adult male and she a female.
From the record it appears that on the day of the pleading was filed, he appeared and entered a plea of guilty, waiving a jury, and that the court entered judgment of conviction, assessing his punishment at a fine of $300 and imprisonment in the county jail for the period of ninety days. Relief by appeal is sought upon the ground that this verdict is excessive. It is not contended in the motion for a new trial that the appellant is not guilty of the offense, but it is urged that the injury inflicted was slight and the punishment out of proportion with the gravity of the offense. *Page 48
The statute, Penal Code, Article 1024, fixes the punishment for an aggravated assault at a fine of not less than $25 nor more than $1000, or by imprisonment in the county jail for not less than one month or more than two years, or by both such fine and imprisonment. The amount of the punishment where guilt is established is, within the limits of the satute, within the discretion of the jury; and when a jury is waived — as it may be in a misdemeanor case — the discretion is with the trial judge. The province of this court is to determine from the record whether the conclusion of guilt has been formed upon a fair trial according to the procedure authorized by the Constitution and laws enacted by the Legislature. It was said by this court in Teague v. State, 4 Texas Crim. App., 147, in which a verdict of one year's imprisonment and $800 fine was rendered in a case of aggravated assault:
"The law having prescribed the bounds to which and beyond which the jury may or may not go in affixing the punishment, and having also charged juries with this duty of affixing the punishment, within the limits prescribed, we do not feel warranted in disturbing a verdict on these grounds as set out in the motion. To do so would be to usurp the powers confided to the jury, unless in a clear case of abuse of their powers. The jury did not reach the maximum allowed, either in fine assessed or the imprisonment imposed."
The same view is expressed in Smith v. State, 7 Texas Crim. App., 414; Handy v. State, 46 Tex.Crim. Rep., and numerous others, see Harris' Texas Constitution, p 115. The instances in which the court has felt authorized to depart from this rule are rare and the conditions extreme. Generally speaking, where the conviction is legal and the punishment within the terms of the statute, its modifications is left by the courts to the executive department, in which there is vested authority to diminish the punishment without overturning the conviction, an authority not possessed by the courts.
Observing these rules and principles, we are constrained to order the judgment affirmed.
Affirmed.
ON REHEARING. March 3, 1920.