
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 12, 1911.
    Rehearing Denied May 10, 1911.)
    1 Criminal Law (§ 1087) — Appeal—Record —Bill oe Exceptions.
    Whore the record fails to show when a bill of exceptions was filed, and it was approved by the judge about 25 days after the end of the term, and there was no order allowing time after adjournment for the filing of bills of exception, it cannot be considered.
    [Ed. Note. — For other cases, see .Criminal Law, Cent. Dig. § 2780; Dec. Dig. § 1087.]
    2. Assault and Battery (§ 96) — Criminal Responsibility — Prosecutions.
    Though an indictment for an aggravated assault failed to charge that the assault was committed with intent to alarm the assaulted party, yet where the evidence showed that the defendant abused and threatened the assaulted party with a shotgun, an instruction upon aggravated assault, under Pen. Code, art. 592, subd. 3, providing that the use of a dangerous weapon with intent to alarm another, and under circumstances calculated to effect that object, is an assault, was proper, as indictments for assault need not set out all the evidentiary facts.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    3. Criminal Law (§ 1124) — Motions xor New Trial — Misconduct oe Jurors.
    Where defendant moved for a new trial on the ground that, one of the jurors had referred to the fact that defendant did not take the stand, and the motion was not verified, nor accompanied by the affidavit of any juror, though five of the six jurors were produced at the hearing of the motion and offered to the state to question, and, being sworn and questioned by the court, testified that they had not considered such fact, and had not referred to it, though one juror thought the absent juror had referred to the defendant’s failure to take the stand, the matter was not presented in such a way that the appellate court can consider the action of the trial court in overruling the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2946-2948; Dec. Dig. § 1124.]
    Appeal from Mitchell County Court; A. J. Coe, Judge.
    Bill Smith was convicted of assault, and appeals.
    Affirmed.
    F. G. Thurmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

A complaint and information were filed against appellant, charging that on June 9, 1910, he, with a gun, the same being then and there a deadly weapon, did unlawfully commit an aggravated assault in and upon G. B. Coughran. The jury found him guilty, and assessed his penalty at a fine of $50 and 30 days in jail.

The facts show that on said date the appellant went upon the streets of Colorado City, armed with a double-barreled shotgun loaded with buckshot, and raised some sort of disturbance. What it was is not disclosed by the testimony. His children ran down to the depot, where Coughran was, to get him to go to the appellant, but for what purpose is not definitely stated. Said Coughran, with the constable and two Texas Rangers, at once went to where the appellant was. Appellant came out into the street from near a mesquite bush with the shotgun, in his hands and pointed the gun at Coughran, cursing him, and said, “Stop,” or he would hill him. He thus kept the gun presented at Coughran, cursing him and threatening him as stated, until these other parties maneuvered in such a way that appellant’s attention was called from Coughran, so that Coughran, by a quick movement, succeeded in grabbing the gun and wrenched it from the appellant’s hands. In doing this the gun was broken in two. Before the gun was taken from him, he could have shot, but did not shoot, Coughran. The testimony given above is but a brief statement of what was testified to by the witnesses on the trial.

The court properly charged on both aggravated and simple assault, charging aggravated assault under the latter clause of subdivision 3 of article 592 of the Penal Code. The case was tried on October 20, 1910. The term of- the court adjourned November 5, 1910. Appellant, by a bill of exception, which seems not to have been filed in the court below, or at least the record does not show it to have been filed, but which was approved, with qualifications, by the judge on December 1, 1910, excepted to the charge of the court submitting the said subdivision of the statute to the jury, because the indictment failed to charge that the assault was committed with the intent to alarm Coughran, and because the evidence failed to show that the assault, if committed, was committed with the intent to alarm Cough-ran. The judge, in allowing this bill, states that the defendant made no exception to said charge át the time of the trial, and neither did he offer any special charge covering the said defect, if any. There was no order allowing any time after the adjournment of court for the filing of bills of exception and statement of facts. We cannot, therefore, consider this bill of exception; but, if we could, there was no error shown thereby. Roberson v. State, 15 Tex. App. 317; Bittick v. State, 40 Tex. 118; State v. Croft, 15 Tex. 576.

The next bill of exception by appellant complains that one of the jurors referred to the fact that the appellant had failed to testify on the trial. This bill, so far as its allowance and filing is concerned, is in exactly the same fix as the one above. The court, in allowing it, states in effect that the question was first raised on the motion for new trial; that the motion was not sworn to, neither was it accompanied by any affidavit of any juror; that the motion for new trial was first set ‘for hearing on November 1, 1910, at which time this question was first raised; that thereupon, at the appellant’s request, the hearing of the motion was postponed until November 4th, in order to give appellant an opportunity to procure affidavits and the testimony of the jurors on the subject; that on the latter date, when the motion again came up for hearing, five of the jurors were present, but the appellant declined to have any of tnem sworn or testify on the subject, but stated that, if the county attorney desired to do so, he could.. The court thereupon had the five jurors sworn, and questioned them. The court then states that the effect of the testimony of four of the jurors was positive that the failure of the defendant to testify on the trial was not mentioned in the jury room, or by any of them; that one of the jurors thought the matter was mentioned by the absent juror, but that it had no influence whatever, and was not considered by the jury. This matter is not presented to us in such a way as that we can consider it.

The only other question raised is that the verdict of the jury is contrary to the law and the evidence. We cannot sustain this contention. Johnson v. State, 19 Tex. App. 545; Kief v. State, 10 Tex. App. 286; Blackwell v. State, 33 Tex. Cr. R. 278, 26 S. W. 397, 32 S. W. 128; Atterberry v. State, 33 Tex. Cr. R. 88, 25 S. W. 125.

There being no reversible error, the judgment is affirmed.  