It was error to overrule the exception to the indictment in so far as said indictment undertakes to charge an aggravated assault. “Striking and beating with a pistol in a manner calculated to inflict serious bodily pain and injury” does not per se constitute an aggravated assault. If the pistol was a deadly weapon when thus used, or if the assault had been made with premeditated design, it would have been an aggravated asrault; but the indictment does not allege either of these conditions. (Penal Code, art. 496, sub. div. 8 and 9.) The indictment is good for a simple assault and battery only.
There was no proof of the venue of the offense. Such proof was indispensable, notwithstanding the judge and jury were satisfied from their own knowledge that the locality where the offense was committed was within the jurisdiction of the court.
It was error for the court to instruct the jury that, if the offense was committed in either Kent or Garza counties the venue was sufficiently proved. The indictment alleged that the offense was committed in Scurry county, and proof that it was committed in any other county would not sustain this allegation. If the the offense was committed in an unorganized county attached to Scurry county for judicial purposes, the indictment should have so alleged. (Chivarrio v. The State, 15 Texas Ct. App., 330.)
Because of the errors mentioned, the judgment is reversed, and the prosecution as to an aggravated assault is dismissed; and the cause is remanded for trial upon the charge of simple assault and battery.
Ordered accordingly.