
    TUCKER v. STATE.
    (No. 6721.)
    (Court of Criminal Appeals of Texas.
    March 8, 1922.
    Rehearing Denied April 26, 1922.)
    I Criminal law <®^»l 144(14)— Charge unex-cepted to presumed sufficient.
    Under Vernon’s Ann. Code Or. Proe. 1916, arts. 739, 740, providing that a charge is unnecessary in a misdemeanor case, if a charge was given and no exception thereto appeared in the record, it will be presumed that the charge properly and fully presented the issues.
    2. Criminal law <®=»763, 764(9) — Charge held objectionable as on the weight of the evidence.
    In a prosecution for aggravated assault, requested charge that accused could not be convicted of a higher grade of assault than simple assault was properly refused, as being on the weight of the evidence.
    3. Criminal law <®=ol 159(2) — 'Verdict not disturbed if it has reasonable support in the evidence.
    The jury being the sole judges of the facts, unless their finding is so unsupported as to lead the unbiased mind to conclude prejudice, a conviction will not be disturbed on appeal.
    On Motion for Rehearing.
    4. Assault and battery <⅞=»92 — Suffering after external effects have disappeared may support conviction for aggravated assault.
    Serious bodily injury relied on to support conviction for aggravated, assault may he shown by proof that the assaulted person suffered from a blow on the- head after the external effects had disappeared.
    Appeal from Harrison County Court; W. H. Strength, Judge.
    Homer Tucker was convicted of an aggravated assault, and he appeals.
    Affirmed.
    Scott & Lane, of Marshall, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Harrison county of an aggravated assault, and his punishment fixed at a fine of $25 andr 30 days in the county jail.

It is unnecessary to state the facts. No written charge was given. Being a misdemeanor case, no charge was required. Article 739, 740, Vernon’s C. C. P. If any verbal charge was given, same was acceptable to appellant, as no exception thereto appears in the record. Two special charges were asked and given; and three were refused. Special charges to the effect that appellant could not be convicted of a higher grade of assault than a simple assault were properly refused as on the weight of the evidence and incorrectly stated the law applicable to the facts, and the other refused charge was fully covered by one given at the request of appellant. Appellant and his witness seemed to make out a case of self-defense.. This was controverted by the state, whose only witness claimed an unprovoked assault upon him by appellant with a baseball bat wherein he was struck on the head by said bat and injured. Assuming, in the absence of exception thereto, that if a charge was given same fully presented the law applicable to all issues made by the facts, we do not feel warranted in reversing a verdict which has any reasonable support in the evidence. The jury are the sole-judges of the facts, and, unless their finding is so without support as to lead the unbiased mind to conclude prejudice, we would not disturb a judgment based on their verdict. That the injured party was in fact struck on «the head by said baseball bat is practically without controversy. He was carried to a spring by other parties and blood washed from his head, and from there was taken in a car to a point where his wound was dressed by a doctor. He testified that when he got hot, at times subsequent to the injury, his head hurt him.

The jury having concluded that the injury was serious, which was the ground of aggravation laid in the complaint, we are not inclined to believe the judgment without support, and, no error appearing in the record, an affirmance is ordered.

On Motion for Behearing.

Appellant urges the insufficiency of the evidence to support a conviction of assault of greater degree than simple assault. As stated in the original opinion, there appears no charge in the record, and we must presume that, if aDy charge was given by the trial court, the law of both aggravated and simple assault was fairly submitted to the jury, and that they, with the law before them, acted within their .province in concluding that the testimony showed infliction of serious injury. That one suffers from a blow on the head after the external effects have disappeared would seem to warrant a conclusion that the bodily injury inflicted was serious. Stevens v. State, 27 Tex. App. 461, 11 S. W. 459; Branch v. State, 35 Tex. Cr. R. 304, 33 S. W. 356.

The motion for rehearing will be overruled. 
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