This is a conviction for aggravated assault. It is alleged by the information that appellant assaulted Alex. Ablowich with a bois d'aro stick, the same being a deadly weapon. Upon the trial the bois d'aro stick was, we suppose, abandoned, for it is not mentioned by any of the witnesses either for the State or defendant.
That which makes this assault aggravated is the fact that it was committed with a certain bois d'aro stick, the same being a deadly weapon; and this information charges an aggravated assault because it alleges that it was made with a bois d'aro stick, and that said stick was a deadly weapon. By reason of this allegation, there being no other circumstance of aggravation alleged, this information is held sufficient for an aggravated assault. This being the case, the rule requires that the circumstance of aggravation as laid in the indictment or information must be proved; and that proof of other circumstances of aggravation will not suffice. (Pinson v. The State, 23 Texas, 579; Williams v. The State, 8 Texas Ct. App., 367; McGee v. The State, 5 Texas Ct. App., 492; Briggs v. The State, 6 Texas Ct. App., 144.)
As above remarked, the prosecution abandoned the bois d'aro stick, and relied upon proof of an aggravated assault with a picket. How, whilst evidence showing an assault with a picket was admissible, being part of the res gestae, yet to convict of an aggravated assault the State wa's confined, by the information, to proof that the assault was made with the bois d'aro stick, and that the same was a deadly weapon.
Again, if the State should be permitted to abandon the stick and rely upon the picket as the deadly weapon,— which is not permissible,— certainly proof that it was a deadly weapon must be made. In the case in hand there is no attempt to. prove-that the picket was *305a deadly weapon. The hois Ware stick figures only in the information, not being alluded to on the trial by witnesses for either party. The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered November 11, 1885.]