Opinion
No. 20289.
Delivered March 22, 1939.
1. — Reversal — Indictment.
Where the defendant was charged with assault to murder with malice and on trial found guilty of such assault without malice, portion of the indictment charging malice was not thereby eliminated, so as to require quashing of the indictment and preclude conviction of aggravated assault on a new trial after the reversal of the first conviction by appellate court.
2. — Inferior Degrees — Rule Stated.
A charge of assault to murder carried with it a charge of all inferior degrees of an assault.
3. — Continuance — Absence of Witnesses.
Complaint of the overruling of defendant's motion for continuance on account of the absence of certain witnesses was not reviewable, in absence of a bill of exceptions relative to the ruling of the trial court thereon.
4. — Misdemeanor Case — Sentence.
In a misdemeanor case, no sentence is necessary, and attempt to sentence defendant, found in the transcript, is a nullity.
Appeal from District Court of Wise County. Hon. J. E. Carter, Judge.
Appeal from conviction for aggravated assault; penalty, fine of $35.00.
Affirmed.
The opinion states the case.
M. W. Burch, of Decatur, and John L. Poulter, of Fort Worth, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
This is the second appeal of this case, the former appeal being found in 133 Tex.Crim. Rep., 112 S.W.2d 475. In this case appellant was found guilty of an aggravated assault, and his punishment assessed at a fine of $35.00.
In his brief he complains because of the fact that he having been heretofore convicted of an assault to murder without malice, that upon this, his second appeal, he could only be tried for some kind of an assault without malice. That because of the peculiar wording of the indictment, he being therein charged with unlawfully, with his malice aforethought, making an assault upon O. Z. Thorrel with intent to kill the said O. Z. Thorrel, — that upon his former jury finding him guilty of such assault without malice, that that portion of the indictment was thereby eliminated from this case. That because of its thus being obliterated from the criminal charge, there is left naught but a charge of an assault to kill, which is an offense not known to the law, and therefore his motion to quash the indictment should have been granted.
His reasoning is rather involved, but suffice it to say that he further admits, however, that it is necessary to eliminate the phrase "with malice aforethought" before his reasoning applies, but does contend that the former verdict of an assault without malice operates to thus eliminate such phrase. In this we can not agree. The degrees of murder have been eliminated by our Legislature when they enacted the present voluntary killing statute, and since said time we have consistently held that a conviction for murder without malice, in the event of the granting of a new trial, did not operate as an acquittal of murder with malice. See Herrera v. State, 36 S.W.2d 515; Ex Parte Conway, 37 S.W.2d 1017; Chappell v. State, 61 S.W.2d 842; Hill v. State, 69 S.W.2d 409.
Appellant's attorney also admits that an allegation that an assault to kill with malice charges an offense known to the law. Our statutes and decisions hold that a charge for an assault to murder carries with it a charge of all inferior degrees of an assault. See Art. 695, C. C. P.
We therefore think that the appellant was properly charged with the offense for which he was convicted, and that appellant's motion should have been overruled.
Appellant filed a motion for a continuance of this cause on account of the absence of certain witnesses, which was by the court overruled. We find no bill of exceptions in the record relative to the ruling of the trial court thereon, and same can not be considered.
In a misdemeanor case no sentence is necessary, and therefore the attempt to sentence appellant, found in the transcript, is a nullity.
Perceiving no error in the record, the judgment is affirmed.