
    CLAYTON v. STATE.
    (No. 4473.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Criminal Law &wkey;814(l) — Instructions— Applicability to Indictment — “Assault.”
    On a ti-ial under an indictment charging an aggravated assault with a deadly weapon, an instruction in the language of Pen. Code 1911, art. 1013, subd. 3, which provides that the use of any dangerous weapon or the semblance thereof in an angry or threatening manner with intent to alarm another and under circumstances calculated to effect that object comes within the. meaning of an assault, was not fundamental error as authorizing a conviction for an offense not charged in the indictment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assault.]
    2. Criminal Law <&wkey;200(2) — Former Jeopardy-Identity op Ofeense.
    A conviction for disturbing the peace by the use of loud, vociferous language, cursing, vulgar, and indecent language in a manner to disturb the peace did not bar a conviction for assault by the use of a gun in an angry and threatening manner; the two offenses being in no sense the same.
    3. Criminal Law &wkey;>1172(l) — Harmless Error-Instructions.
    On a trial in January, 1917, for an assault alleged to have been committed in June, 1916, an instruction inadvertently stating the date of the assault as June, 1917, was not reversible error, as the jury could not have been misled, especially where defendant discovered the mistake when the charge was submitted to him before the argument began and before it was read to the jury, but did not call the court’s attention to it as he should have done until after the verdict was rendered.
    4. Criminal Law <&wkey;814(l) — Instruction — Applicability to Indictment.
    On a trial for aggravated assault with a gun, an instruction as to defendant’s legal right to carry the gun on his own premises or premises under his control was not called for.
    Appeal from Angelina County Court; E. B. Robb, Judge.
    J. H. Clayton was convicted of simple assault, and lie appeals.
    Affirmed.
    S. H. Townsend, of Lufkin, for appellant. E. B. Hendricks, Asst. A tty. Gen., for the State.
   PRENDBRGAST, J.

Under an indictment duly transferred to the county court charging appellant with an aggravated assault upon Sam Traweek, appellant was convicted of a simple assault and fined $10. The indictment charged that on or about June 15, 1916, appellant, in said'county, did then and there unlawfully with a gun, the same being a deadly weapon, commit an aggravated assault in and upon said Traweek. It is unnecessary to recite the evidence. It was amply sufficient to show that appellant committed an assault upon said Traweek at the time and place charged, by the use of a gun, a dangerous weapon, and the semblance thereof, in an angry and threatening manner with intent to alarm him and under circumstances calculated to effect that object, under the third clause of article 1013, P. C.

The court properly stated to the jury what the indictment charged against appellant, and then fully and accurately defined the offense of an assault, both simple and aggravated, as expressly defined by the statute, and in the charge literally followed the language of the law and gave just such charge as is necessary, proper, and usual as to the offense. In doing this he told the jury what was meant by “coupled with an ability to commit an assault,” copying in full article 1013, P. C. Appellant, for the first time after the trial, complained of the court’s charge wherein he copied the last clause of subdivision 3, article 1013, which is: “But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault”— and in effect claiming that as appellant was convicted under this clause, giving such charge was fundamental error and was the conviction of appellant for an offense not charged in the indictment. Appellant’s contention cannot be sustained. All of the authorities are directly and pointedly against him. Smith v. State, 57 S. W. 949, and cases therein cited; Werner v. State, 68 S. W. 682; Smith v. State, 62 Tex. Cr. R. 283, 136 S. W. 1063; Yelton v. State, 75 Tex. Cr. R. 38, 170 S. W. 319; Vann v. State, 43 Tex. Cr. R. 245, 64 S. W. 243; Shuffield v. State, 62 Tex. Cr. R. 557, 138 S. W. 402. It is unnecessary to cite other authorities.

Appellant pleaded that on June 14, 1916, in the justice court a valid complaint was filed against him, charging him “for disturbing the peace by the use of loud, vociferous language, cursing, vulgar, and indecent language in a manner to disturb the peace”; that he later pleaded guilty thereto, and judgment was rendered against him on his plea of guilty, and he paid the costs and fine before this trial. He claimed that this prior conviction was former jeopardy and prevented his trial and conviction in this case. It is clearly seen that the two offenses are in no sense the same, and that his conviction for disturbing the peace would not be former jeopardy to prevent his conviction in this case. We deem it unnecessary to collate the authorities on this point, but see 2 Vernon’s Ann. Crim. Stats, p. 18, where some of the cases are cited.

The court, in submitting the case to the jury for a finding, told them if they believed beyond a reasonable doubt, etc., that appellant committed the assault on or about June 15, 191T, instead of 1916, thus inadvertently stating the áate as June, 1917, instead of June, 1916. Appellant shows that he discovered this mistake when the court submitted his charge to him before the argument began and before it was read to the jury. He did not then call the court’s attention to it, as he should have done. Of course, if he had, the court would immediately have corrected the mistake. He waited till after the case was tried and the verdict rendered, when he ■raised the question in his motion for a new trial. The whole record, the indictment, the evidence, the charge of the court otherwise, all fix the date as June 15, 1916, without any sort of doubt. The case was tried in January, 1917, and of course the jury were not, and could not, have been misled by this mistake in the year in the court’s charge. This question has also been expressly and repeatedly decided against appellant. Giles v. State, 70 Tex. Cr. R. 561, 157 S. W. 943; White v. State, 61 Tex. Cr. R. 498, 135 S. W. 562; Skinner v. State, 69 Tex. Cr. R. 488, 154 S. W. 1007.

The court did not err in refusing appellant’s special charge to the effect that he had the legal right to carry the gun upon his own premises, or premises under his control. No such charge was called for.

The judgment is affirmed. 
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