
    SIMPSON v. STATE.
    (No. 5706.)
    (Court of Criminal Appeals of Texas.
    March 10, 1920.
    On Motion for Rehearing, April 28, 1920.)
    1. Criminal law &wkey;l038(3), 1056(1), 1090(14) —Exceptions to errors in charge not fundamental, and correct requests necessary to review.
    In prosecutions for misdemeanor, errors in the charge, unless fundamental, must not only be excepted to, but special charges correctly presenting the matters complained of must be presented, and refusal excepted to and brought to the Court of Criminal Appeals by proper bills of exception.
    2. Criminal law t&wkey;800(4) — Failure to define offense or state elements in instructions not fundamental error.
    In prosecution as delinquent child through guilt of aggravated assault, it was not fundamental error that trial court submitted issue of aggravated assault without defining offense or telling jury its elements, or what was necessary to constitute aggravated assault.
    3. Infants <&wkey;l6 — Evidence held to sustain finding of delinquency through aggravated assault.
    In prosecution of child as delinquent because of aggravated assault, evidence held sufficient to support finding defendant was guilty through having committed assault with a knife, a deadly weapon, and having inflicted serious bodily injury.
    4. Infants <&wkey;16 — Boy under 17 who commits assault is a “delinquent child” and may be committed' to training school.
    Under Acts 35th Leg. (Fourth Called Sess., 1918) c. 26, boy under 17 who commits assault, simple or aggravated, is a delinquent child, and may be committed to training school for five years, though his older brother may be punished for offense only by fine, or fine and imprisonment in county jail.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Delinquent Child.]
    On Motion for Rehearing.
    5. Indictment and information &wkey;>!89(2) — Conviction for simple assault authorized under charge of aggravated assault.
    Both by statute and under decisions conviction may be had for simple assault under a charge of aggravated assault.
    6. Infants <&wkey;l6 — Boy under 17 cutting another not in self-defense becomes a delinquent.
    Boy under 17 who cut another person with a knife, unless he did so in self-defense, was guilty of simple or aggravated assault, a violation of law, and became a delinquent under Acts 35th Leg. (Fourth Called Sess., 1918) c. 26.'
    Appeal from Tarrant County Court; Hugh L. Small, Judge.
    
      Tee Simpson was convicted of being a delinquent child, and appeals.
    Affirmed.
    John If. Poulter, of Et. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Tarrant county of being a delinquent child, and his punishment fixed at confinement in the state training school for boys for a period of three years.

Several matters are here urged as grounds for reversal. The first complaint is that the, trial court erred, in that he submitted in his charge the issue of aggravated assault, but nowhere gave a definition of the offense, or told the jury what were the elements of the same, or what it would take to constitute an aggravated assault. It is specifically provided by the amendment to the Juvenile Law (chapter 26, p. 43, Acts of the Fourth -Called Session of the 35th Legislature) that a prosecution of a juvenile as a delinquent child shall be regarded as a misdemeanor case. This, then, being a misdemean- or, errors in the charge, unless fundamental, must not only be excepted to, but special charges correctly presenting the matter complained of must be presented, and, if refused, such refusal must be excepted to and brought here by proper bills of exception. See Vernon’s' Code Crim. Procedure, p. 518 et seq.

The errors complained of are not fundamental. Martinez v. State, 56 S. W. 58; Wheeler v. State, 56 Tex. Cr. R. 550, 121 S. W. 166; Lofton v. State, 59 Tex. Cr. R. 270, 128 S. W. 384; Bruce v. State, 41 Tex. Cr. R. 31, 51 S. W. 954; Thomas v. State, 55 Tex. Cr. R. 295, 116 S. W. 600. No requested charges appear in the record.

There was no evidence to contradict that of Dr. Trigg, the physician who attended the alleged injured party and sewed up his wound, who testified that the knife used was a deadly weapon.

It is further urged by appellant that the evidence is insufficient to support the finding of the jury. The jury found appellant guilty as charged, and they recommended that he be placed in the state training school -for a period of three years. Appellant was charged with being a delinquent child, the facts constituting delinquency being alleged to be that he had committed an aggravated assault on one Dudley Keith, appellant being then under 17 years of age. It was alleged in the complaint that said assault was committed with a knife, the same being a deadly weapon, and that serious bodily injury was inflicted. In Black v. State, 67 S. W. 113, it was held that both of these forms of aggravation may be alleged in the same count, without repugnance. Examining the testimony, we find that Dr. Trigg testified to the deadly character of the knife used. His statement is as follows;

“I dressed the wound, and I think I took about five or six stitches in closing up the skin. I only dressed the wound one time. The knife used is, in my opinion, a deadly weapon.”

Appellant himself testified that he was only 16 years of age. The knife was introduced in evidence and exhibited to the jury, and there appears not a word of evidence from appellant, or any other witness, which controverts the testimony of Dr. Trigg to the effect that the knife was a deadly weapon. ~We think the evidence supports the verdict.

By the express terms of our statute (■see chapter 26, Acts' of the Fourth Galled Session of the 35th Legislature), a boy under 17 years of age who “violates any law of this state” is thereby brought within the definition of a delinquent child. It would therefore appear that a boy under 17 years of age, who commits an assault, whether simple or aggravated, may be committed to the training school for five years, while his older brother may only be punished for the same offense by a fine, or by fine and imprisonment in the' county jail. Complaint of this matter, however, is not for us. We can only decide if the law as written has been adhered to.

We are of opinion that no failure to track the law appears in this record in any way that we can consider it, and the judgment of the lower court is affirmed.

On Motion for Rehearing.

In his motion for rehearing, appellant insists that we were in error in holding the evidence sufficient to make out a case of aggravated assault. We are unable to agree with this contention, but observe that if the jury had merely found that there was only a ■simple assault committed, instead of an aggravated assault, it could not have in any way affected the matter involved. The issue was as to whether or not appellant was a delinquent child, and, under our statute on the subject, he became such delinquent when he violated any law of this state. See Acts of the Fourth Called Session of the 35th Legislature, chapter 26. A simple assault is as much a violation of the law of this state as is an aggravated assault, and therefore, in either event, the verdict of the jury must have been that appellant was a delinquent child. We do not see how any harm could have resulted to appellant. Thg penalty fixed by the jury was for delinquency, and it was based on the facts before them, and whether the offense made by the facts be called by one name or another in the statutes, the facts themselves would be unchanged, and would therefore have called for the same penalty at the hands of the jury. It is so, both by statute and numerous decisions, that under a,charge of aggravated assault in this state, a conviction may be had for simple assault.

The record in this case showed that appellant cut one Dudley Keith with a knife. Unless the cutting was in self-defense, appellant was guilty of a violation of the law. If guilty of any violation of the law, he became a delinquent by reason of that fact. Unless, then, he be acquitted, he must be adjudged a delinquent.

The trial court submitted self-defense in his charge and the jury found against appellant thereon, and the judgment of delinquency was the necessary sequence. The punishment fixed was within the bounds laid in the statute.

The motion for rehearing is overruled. 
      <5^30 For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     