Opinion
No. 13355.
Delivered May 21, 1930.
1. — Simple Assault — New Trial.
Motion for new trial on ground of newly discovered evidence, if not sworn to, is insufficient.
2. — Simple Assault — Variance.
One charged with assault by striking another with his fist is not entitled to complain on the ground of a variance when convicted upon proof that he violently caught the injured party by the throat with his hands.
Appeal from Brazoria County Court. Tried below before the Hon. Scott Gaines, Judge.
Appeal from the conviction for simple assault; penalty, a fine of $5.00.
The opinion states the case.
A. E. Masterson, of Angleton, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
Conviction for simple assault; punishment, a fine of $5.00.
A motion for new trial on the ground of newly discovered evidence must be sworn to. Barber v. State, 35 Tex. Crim. 70; Dodson v. State, 92 Tex.Crim. Rep.; Miles v. State, 99 Tex.Crim. Rep..
We think one charged with an assault by striking another man with his fist, could not complain of a variance upon conviction supported by proof that he violently caught the alleged injured party by the throat with his hands. These are the only matters complained of.
Finding no error in the record, the judgment will be affirmed.
Affirmed.