ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.Appellant has filed a vigorous and, we think, unwarranted attack on the original opinion in this case in the form of a motion for rehearing. It is admitted that this court has authority to review the findings of the jury and to set aside their judgment if the punishment be excessive (Calhoun v. State, 214 S. W. 335; Gipson v. State, 161 S. W. (2d) 1088). What is excessive punishment may not be determined by this court on our idea of an appropriate penalty so long as it was one which the jury had the power to assess. .
Appellant has presented a number of cases which he considers important and then makes this statement: “After reading the above opinions of former Judges of this Court I challenge this Court to repeat such opinion as heretofore handed down.” The only case which we consider in point is Robinson v. State, 7 S. W. 531, which is an opinion by Judge Hurt. The appellant in that case was drunk and raised a fuss with Matilda Jones, a female. Having been ordered off the premises by Matilda’s employer, he waylaid the woman and when she left the premises to go to her home, he called for her to stop and when she refused he seized her sleeve and jerked her nearly down, tearing off the sleeve of her dress. He did not strike the witness nor did he attempt to do so. The jury assessed a penalty of $500.00 and twelve months in jail. There was a variance between the information and complaint so that the construction given to it was that only a simple assault was charged. There was no allegation whatsoever that the accused was an adult male person. It was therefore held that the penalty assessed was excessive. Definitely it was, because an aggravated assault was not charged and no such penalty could, under the law, be assessed for a simple assault. Neither would the evidence support an aggravated assault had it been properly lodged against *214the accused, for it does not disclose that he was an adult male person.
In the case before us, appellant is properly charged with aggravated assault and the evidence supports it. The jury did not exceed the penalty which the legislature said may be assessed under the indictment and under the evidence of the ease. There is nothing cruel about the penalty, as that term is used in the Constitution, and we are unable to find support for the contention that this court has power to set aside the jury’s decree. It may be that the jury’s verdict was a harsh one but they had the witnesses before them and were in a better position to judge of the facts than this court could be. Logically, the law entrusted them with that duty and responsibility and it is only for this court to say whether or not the evidence will authorize their verdict under the charge.
Appellant’s motion for rehearing is overruled.