The appellants were indicted for an aggravated assault and battery upon one S. A. Winslow, and, as special preliminary pleas to the indictment, one interposed a plea of autrefois acquit, and the other a plea of autrefois convict, for the same offense, before a justice of the peace. These special pleas were submitted by the court to the jury, under appropriate instructions. The jury found them guilty of an aggravated assault, and assessed their punishment at a fine of $100.
The proceedings in regard to the special pleas were in conformity with the rules.of practice hitherto laid down in the decisions of our supreme court. Norton v. The State, 14 Texas, 387; Prine and Smith v. The State, 41 Texas, 300; Boggess v. The State, 43 Texas, 347; Richard Wilson v. The State, 45 Texas, 76.
If objection could, with any show of propriety, be raised at all to the charge of the court, it might, perhaps, be that the charge was more favorable to the defendants, especially as to the punishment of the offense, than the law prescribes. We do not think, however, that any material right of the defendants, or either of them, was prejudiced in that regard, or by the refusal of the court to give the special instructions asked by the defendants. The smallest and lightest fine or punishment affixed by law to the offense of aggravated assault has been imposed, when the evidence might well have warranted, in our opinion, a heavier penalty.
There were no extenuating circumstances. The insulting words complained of were provoked by the rudeness, in the first instance, of one of the defendants, and he, himself a robust young man, afterwards gets his brother, also a robust young man, and in company together they follow the party assaulted, being an aged, gray-haired, decrepit *73mail, and, overtaking him where no one is near to prevent, they roughly drag him from his mule, and inhumanly beat and wound him until he is insensible.
The judgment of the lower court is in all things affirmed.
Affirmed.