The conviction in this case was for an aggravated assault, and appellant’s punishment was assessed at a. fine of $100.
An aggravated assault is certainly charged by the information, not only in the use of the specific words “ aggravated assault,” but'also by charging that it was committed “ with certain rocks and a stick, the same being deadly weapons.”
It is not necessary, in charging an aggravated assault, committed with “ a deadly weapon,” to allege also that it was done “ under circumstances not amounting to an intent to murder or maim.” Pasc. Dig., art. 2150; The State v. Lutterloh, 22 Texas, 210. See, directly upon this point,. The State v. Franklin, 35 Texas, 497.
If an assault be made with a “ deadly weapon,” it is ipsofacto an aggravated assault, because of the weapon used. Pinson v. The State, 23 Texas, 582. As to whether or not the weapon is, in fact, a deadly weapon, is matter of proof, and depends, in some cases, upon the mode and manner of its use. Shadle v. The State, 34 Texas, 572; Chambers v. The State, 42 Texas, 254; Skidmore v. The State, 43 Texas, 93; Kouns v. The State, 3 Texas Ct. App. 13. But, whilst this is true as to the proof, it is not necessary that the-information or indictment should allege more than the circumstance which constitutes the aggravation, to wit, the use of a “ deadly weapon,” when that circumstance is relied upon. Williamson v. The State, 5 Texas Ct. App. 485 Mooring v. The State, 42 Texas, 85.
*665There is no statement of facts, bill of exceptions, or charge of the court contained in the record. The information being sufficient, the judgment is affirmed.
Affirmed.