Bennett v. State

Appellant has filed a motion for rehearing in which he earnestly insists that the court was in error in stating there was no evidence that appellant was an adult male person. As he contends, there is ample evidence that he was a male person, but the evidence must go further and show that he was an adult male; that is, a person more than twenty-one years of age, before he can be convicted of an aggravated assault under the allegations of this information. Concede that there is evidence which would authorize the jury to find that he was an adult, appellant sitting quietly by and permitting the court to submit both aggravated assault and simple assault, making no objection thereto, can he after conviction raise the question that he, under the charge of the court, should not have been convicted of simple assault but of aggravated assault, if guilty at all? We do not think so. In every indictment or information charging aggravated assault, simple assault is necessarily included. In this case if the proof failed to show that appellant was an adult male, yet did show beyond a reasonable doubt that he made an assault on the person named, he could and should be convicted of a simple assault. The contention that appellant makes has often been before this court, and has always been decided adversely to his contention. If a person is charged with an offense, and the court in his charge authorizes a conviction for a less grade of that offense, and the jury convicts of the lesser grade, he will not be heard to complain that he should, under the evidence, have been convicted of a graver grade of the offense charged. This was early decided in this *Page 382 court. In the case of Baker v. State, 4 Texas Crim. App., 223, this court said: "We know of no authority which would suggest the idea that one charged of a higher grade of an offense, which includes different degrees, has been permitted to set aside a conviction on the ground that he has been convicted of a lesser degree of the offense than that charged in the indictment; or when convicted of murder in the second degree, he has been heard to successfully complain that the testimony would have supported the higher offense of murder in the first degree." And in Powell v. State, 5 Texas Crim. App., 234, the court held, as stated in the syllabus: "A conviction will not be set aside because the court below gave to the accused the benefit of a charge on a less degree of offense than the jury would have been warranted in convicting him of; nor because the jury, in view of the mitigating circumstances, were unwilling to convict of the greater offense." Many cases could be cited, but the rule is so tersely stated by Judges Davidson and Henderson in their opinions in the case of Pickett v. State, 63 S.W. Rep., 325, we do not deem it necessary to cite other authorities. Judge Davidson says: "Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree." Judge Henderson says: "This doctrine is too well settled by our decisions to be controverted." If it was a different offense, and not a degree of the same offense, the authorities cited by appellant might be applicable.

The motion for rehearing is overruled.

Overruled.