
    WARREN v. STATE.
    (No. 8402.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.)
    Homicide <®=o342 — Accused convicted of simple assault could not complain on theory evidence showed commission of graver offense.
    Where accused was on trial for assault with intent to murder which by Code Cr. Proc. 1911, art. 772, subd. 2, includes all assaults of an inferior degree, and he was convicted of simple assault authorized by an instruction given pursuant to article 771, he c.ould not complain of the conviction on ground facts showed him to be guilty either of assault to murder or of aggravated assault.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Coleman Warren was convicted of simple assault, and was fined, and he appeals.
    Affirmed.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Nacogdoches county of simple assault, and his punishment fixed at a fine of $10.

There are no bills of exception in the record, but by exceptions presented to the charge of the court, and duly certified by notation thereon of'the fact that they were timely presented, appellant has brought before us the proposition that the court erred in his charge in submitting to the jury the law of simple assault, it being asserted that the facts did not raise the issue of such assault; and that, therefore, it was error to submit it.

Reference to article 771 of our Code of Criminal Procedure discloses the statement by the Legislature that where a, prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree, but guilty of any degree inferior to that charged in the indictment or information. Appellant was on trial for assault with intent to murder. Subdivision 2 of article 772 of our C. C. P. provides that such assault includes all assaults of an inferior degree. The record discloses that assaults were made upon the prosecuting witness by appellant and his brother by the use of knives. We observe nothing in the record showing the size of the knives save as may be inferred from the character of the injuries inflicted. We are unable to see how one charged with crime may sustain a position before the appellate court that the trial court committed reversible error in giving to the jury a charge more favorable to the accused than was warranted by the facts. Appellant insists that the facts show him to be guilty of either an assault to murder or an aggravated assault. The learned trial judge did not agree with appellant, but gave him in addition A charge on simple assault, which appears to us to be favorable "to him. In Gatlin v. State, 86 Tex. Cr. R. 339, 217 S. W. 702, and Campbell v. State, 65 Tex. Cr. R. 418, 144 S. W. 966, we held that one convicted of an inferior grade of homicide could not here complain upon the proposition that the facts in evidence showed him to have committed a graver offense. We see no reason to apply to a conviction of simple assault a different rule from that applicable in those cases.

We have examined the other exceptions taken to the charge of the court, but deem them to be too general and not to present any error calling for discussion or review at our hands.

The judgment will be affirmed. 
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