The indictment in this case was presented on the fifteenth day of January, 1879, and charged appellant with the commission of an aggravated assault on the same day. The trial of the cause was had on August 4, 1879, after the new Code took effect, a provision of which ameliorated the penalty for that offence. The court, however, disregarded the amelioration, and instructed the jury to affix the original penalty in case of conviction.
In the absence of an election upon the part of the prisoner to be tried under the law in force at the date of the commission of the offence, such an instruction is deemed fundamental error. Allen v. The State, 7 Texas Ct. App. 298 ; Veal v. The State, 8 Texas Ct. App. 474.
The judgment is reversed and the cause remanded.
Reversed and remanded.