ON MOTION FOR REHEARING.
GRAVES, Judge.We are in agreement with the statement in our original opinion herein that the phrase “and did then and there strike, beat, bruise and wound the said Georgia Mae Brown,” can be treated as surplusage, and there still appears a good complaint and information. There remains a charge that William Cabness did commit an aggravated assault in and upon Georgia Mae Brown, * * * the said William Cabness being then and *370there an adult male, and the said Georgia Mae Brown being then and there a child. We are of the opinion that such allegations contain the requisites for charging an assault, and where such assault is committed by an adult male upon the person of a child, the same becomes an aggravated assault. Art. 1147, Sec. 5, P. C.
We do not think the words “and did then and there strike, beat, bruise and wound,” etc., are descriptive of the offense, and surely not necessarily so. Mr. Branch in his Penal Code, page 912, says:
“In alleging a simple assault it is not necessary to allege the particular acts of violence, nor need the means used be alleged. Browning v. State, 2 Tex. App. 47; Marshall v. State, 13 Tex. App. 492; Roberson v. State, 15 Tex. App. 317.”
However it is necessary to allege, if desired to bring such an assault within the category of an aggravated one, the facts that place such assault within such category, which we find here done in the allegation that appellant was an adult male and the injured person a child.
We held in the early case of Mayo v. State, 7 Tex. 342, that:
“But allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded. United States v. Howard, 3 Summ. 12. And where an indictment contains matter unnecessary to- a description of the offense, it may be rejected. The State v. Coppenburg, 2 Strobh. 273. Again, if eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code. Coleman v. State, 2 Texas Ct. App. 512; Burke v. State, 5 Texas Ct. App. 74.”
It is also noted that it was said in the case of Webb v. State, 36 Tex. Cr. R. 43, that:
“The charge in the information, that ‘J. W. Webb, an adult male, did then and there commit an aggravated assault and battery in and upon A. L. Webb, á female,’ sufficiently charges an aggravated assault, and the further charge in the informa*371tion as to how said assault was committed, may be rejected as surplusage.”
We do not think the phrase relative to the beating of this child is descriptive of the offense of the assault, but appears to be a further method of committing such an assault. It is not alleged that appellant committed such assault “by” beating, etc., such child, but merely adds such circumstances to the already complete act by using the conjunction “and,” thus cumulating therein a further ground of assault.
We adhere to our ruling in the original opinion. The motion for a rehearing is overruled.