The main objection urged in the motion in arrest of judgment against the complaint appears hypercritical. We are of opinion an aggravated assault is sufficiently charged.
The circumstance of aggravation laid in the information was, that the . assault was committed “with a deadly weapon.” The county judge, however, was not satisfied with limiting the investigation to that circumstance, but charged the jury upon other circumstances enumerated in the statute. This was done over objection of defendant, as shown by his bill of exceptions. As has been repeatedly held, this was error; and a bill of exceptions having been saved, makes it an error requiring a reversal of the judgment, though the case was a misdemeanor. See Kennedy v. The State, decided at the present term, ante, p. 399.
Amongst other features of the charge, we call attention to the following paragraphs : —
“ 10. If you believe that an offence has been committed, you may find the defendant guilty either of an aggravated assault or a simple assault.”
Suppose the jury should have believed that an offence had been committed, but that it had not been committed by *475defendant, but the other party, — the one he was charged to have assaulted, — what would have been their duty under this instruction ? To have found him guilty, of course.
“11. If you believe from the testimony that defendant is not guilty, you will so find. Defendant is supposed to be innocent until his guilt is established by testimony.” A defendant is not supposed, but the law, as a fact, presumes him to be innocent until his guilt is established by legal evidence. Code Cr. Proc., art. 727.
“12. Defendant is entitled to all reasonable doubts.” A defendant would scarcely object to this, and in justice to the present defendant we will state that he has not done so. To say the least of it, it opens up, perhaps, a large field of speculation and doubt for the jury outside the facts of the case.
The judgment is reversed and the cause remanded.
Reversed and remanded.