
    WHITENER v. STATE.
    (No. 4994.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.
    Rehearing Denied May 8, 1918.)
    1. Assault and Battery <&wkey;92 — Aggravated Assault — Decrepitude — Sufficiency oe Evidence.
    Evidence that accused weighed 180 pounds, and that assaulted person weighed 140 pounds, and was and had been for some time afflicted with tuberculosis, is not alone sufficient to show assault was aggravated because of decrepitude of assaulted party.
    2. Criminal Law <&wkey;296 — Judgment—Former Jeopardy.
    Adjudication by the court of matter claimed to constitute former jeopardy is necessary where such plea is decided adversely by the court, and not submitted to the jury.
    Appeal from McLennan County Court; James P. Alexander, Judge.
    C. C. Whitener was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Jos. W. Hale, of Waco, for appellant. E. B. Hendricks, Asst. Atty. G-en., for the State.
   DAVIDSON, P. J.

This conviction was for aggravated assault; the fine being $25. The evidence shows that Whitener, his wife, and child were ^driving in an automobile, and the alleged assaulted party, Jenkins, was driving a service ear; that Jenkins ran into the car occupied by appellant and his family, knocking his child from the car. A personal difficulty ensued, in which appellant struck Jenkins, caught him by the coat, and pushed him down. The assault was alleged to be aggravated by reason of the fact that Jenkins was decrepit. The evidence on this point is that appellant weighed ISO pounds, and Jenkins weighed 140 pounds, and was afflicted with tuberculosis, and had been for some time. The evidence is silent as to any further weakness or incapacity or decrepitude on the part of the assaulted party, Jenkins. We are of opinion the evidence is not sufficient to support the allegation.

Appellant had pleaded guilty in the corporation court for this assault, and paid a fine of $15. A plea of jeopardy was interposed in.the county court on the proposition that he had previously been convicted and fined in a court of competent jurisdiction, and, second, that when first tried in the county court the jury was out considering their verdict for something like six hours. The jury came in after being out about three hours, and reported they could not agree. After being out a while longer, amounting to six hours from the time of the submission of the case, in the absence of the defendant and his counsel, the court discharged the jury on their statement that they could not agree. The jury stood 5 to 1, but it is not shown how the 5 or the 1 stood, whether for acquittal or conviction. Tile court did not adjudicate this matter in a judgment. We are of opinion that under the authority of Hooper v. State, 42 S. W. 398, Wright v. State, 35 Tex. Cr. R. 158, 32 S. W. 701, and Woodward v. State, 42 Tex. Cr. R. 200, 58 S. W. 135, the adjudication by the court was necessary. The plea of jeopardy was not submitted to the jury, but decided by the court adversely to the defendant. If the question of jeopardy arises upon another trial, it should .be governed by the decisions above mentioned.

The judgment is reversed, and the cause remanded.

PRENDERO AST, J., absent. 
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