
    ROYSTON v. STATE.
    (No. 4491.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.
    On Motion for Rehearing, June 20, 1917.)
    Assault and Battery &wkey;>92 — Aggravated Assault — Seriousness — Sufficiency on Evidence.
    In prosecution for aggravated assault, evidence held insufficient to show the character of seriousness required to render the assault an aggravated assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139.]
    Prendergast, J., dissenting.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Jesse Royston was convicted of an aggravated assault, and he appeals.
    Judgment reversed, and cause remanded.
    A. L. Hatchett and L. W. Greenly, both of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault by the judge who tried the case, a jury having been waived. His punishment was assessed at a fine of $25, and 60 days’ imprisonment in the county jail.

The complaint and information contain two counts, one charging the assault to have been committed with a rock, which was a deadly weapon; the other that the assault was aggravated by reason of the fact it produced serious bodily injury. There is nothing to indicate that the rock was a deadly weapon, except the fact that defendant, under the state’s view, knocked the assaulted party down twice, hitting him in the back of the head the first time, and upon his getting up defendant struck him again, and at this time he had a rock in his hand. The inference may be deduced that both blows were inflicted by the rock. The only evidence in regard to the seriousness of the wound was the testimony of the assaulted party wherein he states that he was laid up. or suffered from the wound for a couple of weeks. This is rather meager testimony to show that the assault was of a serious nature, but it may have been sufficient under the circumstances to have justified the court reaching the conclusion that the serious bodily injury was inflicted. Taking this view of the matter, the judgment will be affirmed.

On Motion for Rehearing.

On a former day of this term this judgment was affirmed. Appellant contends in his motion that the evidence does not sustain the conviction, and the affirmance was error.

In the opinion affirming it was stated that there was nothing to indicate that the rock was a deadly weapon, except the fact that defendant, under the state’s view, knocked the assaulted party down twice, hitting him in the hack of the head. It was also stated that the only evidence regarding the seriousness of the wound was the testimony of the assaulted party, wherein he states that he was laid up or suffered from the wound for a couple of weeks. After a more careful revision we are inclined to the opinion now that the affirmance ought not' to have occurred, and in order to make the matter clear we copy the testimony of the one state witness in respect to this phase of it. This witness says: .

“I started on past Royston on towards my home. The next thing I knew somebody struck me. Royston was behind me.' The blow knocked me to the ground, and I was unconscious for a few minutes. I was hit in the back of the head with some hard substance, and injured for a couple of weeks. When I arose, Royston struck me again. When I got up I saw that he had a largo rock in his hand. I picked up a rock to defend myself.”

This is the entire testimony with reference to the deadly nature of the rock and the seriousness of the wound. Reviewing this testimony, we are of the opinion that testimony does not show that character of seriousness contemplated by the law. The amount of the injury is not stated. It might have been a slight wound, and would take a couple of weeks for it to heal. The cases bearing upon this question will be found collated in Branch’s Criminal Law on page 43. It is unnecessary to make quotations from these opinions or investigation of the matter, as we are convinced that we were in error in the original opinion, and the motion for rehearing is granted, the affirmance set aside, and the judgment is now reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). The original opinion was correct, and should be adhered to. “Serious” bodily injury does not mean that the injury must anything like, or nearly, or almost, produce death. It means simply that the injury must not merely be trivial or slight. It must only be grave —serious. For one man to strike another in the back of the head with a large rock and knock him down and render him unconscious for a few minutes, and then strike him again with the rock when he gets up, and injure him for two weeks, would certainly be a serious injury. Such injury would not be trivial or slight. Bruce v. State, 41 Tex. Cr. R. 30, 51 S. W. 954; Fulkerson v. State, 57 Tex. Cr. R. 80, 121 S. W. 1111; Housley v. State, 55 Tex. Cr. R. 372, 116 S. W. 816; Thomas v. State, 55 Tex. Cr. R. 295, 116 S. W. 600.

I respectfully dissent. 
      <&wkey;For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes
     