In this case appellant was tried under an indictment for assault with intent to murder, and was found guilty of an aggravated assault, with his punishment assessed by verdict and judgment at a fine of $27. This trial was had since the adoption and in pursuance of the provisions of our Revised Statutes. Under art. 498 of the Penal Code, the punishment for aggravated assault or battery now is.“by fine not less than twenty-five nor more than one thousand dollars, or imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment.”
Primarily no objection was made to the indictment, but through his motion in arrest of judgment for the first time defendant seeks to call in question'the validity of the indictment, because the minutes of the court do not show that it was presented by a grand jury of Rusk County and returned into the District Court as required by law. Rev. Stats., arts. 414, 415. Such objection cannot be entertained on a motion in arrest of judgment, Houillion v. The *212State, 3 Texas Ct. App. 538 ; Jinks v. The State, 5 Texas Ct. App. 68.
Several special instructions were asked in behalf of defendant, which, according to a note of indorsement made by the clerk, were refused ; but they are not indorsed “ given ” or “ refused,” nor are they signed by the judge. If refused, the action is not made the subject of either a bill of exception or of an assignment of error. Where the record is entirely silent, the presumption is the instructions were given as asked; Seal v. The State, 28 Texas, 491. Whether we should treat them as given or refused is immaterial in this case, since it appears to us that the charge of the court was sufficiently full and explicit, and it is not obnoxious to the criticism or objection of counsel as embodied in the supposed bill of exceptions copied into the record. This bill of exceptions is not approved, signed, or certified by the judge, and we are not apprised by what authority it has been incorporated into the record as a part of the proceedings.
In its salient features, the evidence presented a case in legal contemplation quite similar to Cato v. The State, 4 Texas Ct. App. 87, and, upon that case and the authorities there cited, no good reason is seen why the judgment of the court below in this case should not be affirmed, and it is therefore so ordered.
Affirmed. .