The complaint filed in the justice court charged a simple assault only, of which said court had jurisdiction. It is appellant's contention that as a matter of fact he was an adult male and the assaulted party was a female, and that if guilty at all he would be guilty of an aggravated assault under article 1147, subd. 5, P. C.
If the officers of the State knew these to be the facts could they elect to prosecute for a simple assault in the justice court? The books contain many cases in which parties have been prosecuted in the county court and convicted of aggravated assault upon proof of facts which showed the offense to have been of a higher grade, and upon a later effort to prosecute in the district court for assault with intent to murder, a plea of former jeopardy has been sustained; it being held in such cases that the State may carve the lesser offense, and because the prosecution therefor proceding upon information, and not by complaint alone, accused could not be placed in jeopardy a second time for the same criminal act. Grisham v. State, 19 Texas App., 504, Paschal v. State, 49 Tex.Crim. Rep.. If an effort should be made in the present case to prosecute appellant in the county *Page 305 court for an aggravated assault based upon the same criminal act which was the basis of the prosecution in the justice court the same principle would apply and former jeopardy might be plead, but for the impediment of the Statute, article 536, C. C. P., which reads as follows: "A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense."
Under the statute quoted a former conviction in a justice court, being upon complaint alone, will not bar a prosecution in the county or district court for a higher grade of offense, but there could not be a second conviction for the lesser offense, for which conviction was suffered in the justice court. (Branch's Ann. Texas P. C., sec. 631, and authorities cited).
If it should appear that prosecution was pursued both in the justice court and county or district court for the fraudulent purpose of making accused suffer two penalties for the same criminal act a different question would be presented from the one before us in the present instance.
It is doubtful if under the facts this court should have taken cognizance of the present case. If appellant had challenged in the justice court the jurisdiction therof in a timely manner, and it had been overruled and a fine assessed against him, and upon appeal to the county court the jurisdictional question had again been presented in timely manner and overruled and a fine less than $100 assessed, no appeal could have been taken to this court under the provision of article 53, C. C. P., which excludes from this court appellate jurisdiction in any case which has been appealed from an inferior court to the county court, where in the latter court the fine imposed did not exceed one hundred dollars. Appellant was fined only five dollars in the county court. No appeal could have been prosecuted therefrom seeking a review of any question. We think it gravely doubtful if the writ of habeas corpus could be resorted to under the circumstances. The question of jurisdiction turns upon the facts, and not upon a legal proposition apparent from the record.
The motion for rehearing is overruled.
Overruled. *Page 306