
    BROOKS v. STATE.
    No. 14119.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Rehearing Denied June 17, 1931.
    
      Donald & Donald, of Bowie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for aggravated assault; punishment being assessed at a fine of $100.

The record is here without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The contention is made that the conviction for an aggravated assault cannot be had under an indictment for an assault with intent to murder. Such an indictment includes aggravated assault and simple assault. See Bittick v. State, 40 Tex. 117; Green v. State, 8 Tex. App. 71, and many other cases collated in Branch’s Ann. Tex. P. C. § 1628.

In the present instance, the record shows that the appellant was tried under an indictment for assault with intent to murder, and the jury returned a verdict of aggravated assault, which disposes' of the higher grade of assault.

The criticisms of the charge of the court are untenable. There were no exceptions presented to the charge. The evidence before the trial court is not brought forward for review. Without the evidence, an ap-praisement of tfie charge is not possible. The idea that the charge is fundamentally bad because it authorized the consideration of the offense of aggravated assault under the indictment, as stated above, is not regarded as sound.

In the judgment it is declared that the state of Texas “do have and recover of the defendant, the said fine of $100.00 and all costs of this prosecution, that he be committed to jail until such fine and costs are paid, and that execution issue against his property in the amount of such fine and costs.” It is the appellant’s contention that, since the prosecution was established upon an indictment charging a felony, and by the verdict of the jury he was found guilty merely of a misdemeanor, he cannot be imprisoned for the costs of the felony prosecution. The exact point was decided against the appellant’s contention in Overstreet v. State, 12 Tex. Cr. R 182, 15 S.W.(2d) 1039.

The motion for rehearing is overruled.  