
    CARMICLE v. STATE.
    (No. 3355.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1914.
    Rehearing Denied Jan. 13, 1915.)
    1. Assault and Battery (§ 97)—Aggravat-ed Assault—Verdict.
    In a prosecution for aggravated assault on a female, a verdict finding defendant guilty as charged and assessing' his punishment at a fine of $25, which was the lowest penalty for aggravated assault and the highest for simple assault, was not defective, as indefinite concerning the óffense of which accused was convicted, since any assault on prosecutrix would be an aggravated one by virtue of the statute.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 151; Dec. Dig. § 97.]
    2. Assault and Battery (§ 54)—Aggravat-ed Assault.
    Where the state’s evidence showed that defendant intentionally drove his wagon against a buggy being driven by the prosecuting witness, a young female, whereby the wheel of prosecu-trix’s buggy was crushed, and she was thrown out and injured, such facts sufficiently showed an aggravated assault.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54.]
    3. Criminal Law (§ 922)—Trial—Instruc-tions—Objections—Time.
    Objections to instructions must be made before they are read to the jury, and must be verified at that time by a proper bill of exceptions, and cannot be made for the first time in the motion for new trial.
    [Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    Appeal from Ft. Bend County Court; W. I. MeFarlane, Judge.
    Robert Carmicle was convicted of committing aggravated assault on Annie Vajofka, and lie appeals.
    Affirmed.
    J. S. McEachin and J. O. Florea, both of Richmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NÜMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-
    
   HARPER, J.

Appellant was prosecuted and convicted of committing an aggravated assault on Annie Vajofka, and his punishment assessed at a fine of $25.

Appellant contends that, as the verdict ■reads that “We, the jury, find the defendant guilty as charged in the information,” it is too vague and indefinite. As the jury assessed the punishment at only $25, the lowest penalty for aggravated assault, and the highest for simple assault, there might be merit in his contention, had the court submitted the, issue of simple assault in his charge; but the court did not do so, nor would the facts have authorized a charge on simple assault. If appellant is guilty of any offense, it is aggravated assault, for Annie Vajofka is a young female) and an assault on her would be an aggravated assault by virtue of the statute.

The court did not err in refusing to give peremptory instructions to acquit. According to the state’s evidence defendant intentionally drove his wagon against a buggy being driven by the prosecuting witness, crushed a wheel of the buggy, and from the impact of the vehicles she was thrown out of the buggy. If this was intentionally done, it would be an assault. However, appellant by his testimony would make it an accident—that he had no intention of driving his wagon against the buggy. At appellant’s request the court instructed the jury:

“Unless you believe from the evidence beyond a reasonable doubt that the defendant, Robert Carmicle, struck the vehicle of the assaulted- party, Annie Vajofka, with the intent to injure her, you will acquit the defendant.”

Again, at. the request of defendant, .the court instructed the jury:

“If you believe from the evidence that injury was inflicted on the assaulted party by the defendant, the intent to injure will not be presumed, but must be proven.”

These charges presented the defensive, theory as made by the testimony offered by the defendant.

Appellant in the transcript has three bills of exception to the charge of the court, but each of them is indorsed as follows:

“This exception not being made at the time the charge was given, it is not allowed.”

It is thus seen that neither of the three bills are approved by the court, but he specifically refuses to approve them. Under the-law formerly, objections to the charge as given could be made in the motion for a new trial; but that is not the law now. The objections to the charge must be made before it is read to the jury, and that such objections were made at that time must be verified by a proper bill of exceptions.

The record being in this condition, no exceptions being reserved to the introduction of any testimony, all special charges being-given, and no exceptions reserved to the-charge as given until after verdict, the judgment will be affirmed.  