
    ALDRIDGE v. STATE.
    (No. 9243.)
    (Court of Criminal Appeals of Texas,
    June 24, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Homicide <&wkey;340(4) —Conviction of aggravated assault renders immaterial errors in charge as to offenses of higher grades
    Alleged errors in instructions or submission of issues as to assault with intent to murder or assault with prohibited weapon become immaterial, where conviction was only for aggravated assault, an offense of lesser grade.
    2. Criminal law <&wkey;l 167(2) — Failure to require election of counts no injury to defendant, where verdict was returned on lesser count.
    Failure to require state to elect whether it would rely on count of making assault with prohibited weapon, or on assault with intent to murder, and aggravated assault, could not have injured defendant, where verdict of aggravated assault was returned.
    3. Criminal law &wkey;>l 173(3) — Error in failing to instruct as to one count held immaterial, where verdict was under other.
    ' Error, if any, in failing to charge that accused could not be convicted of aggravated assault under count charging assault with prohibited weapon was eliminated, where blank verdicts were prepáred covering both counts submitted in every particular, and verdict was returned on other count.
    4. Criminal law &wkey;>l 137(7) — Omission in charge not error, where special charge requested by accused on that issue was given.
    Accused cannot predicate error on omission of affirmative charge on issue, where special charge on that isssue was given at his request.
    5. Criminal law <&wkey;>1173(5)— Refusal of special charge not error, where effect was more favorable than detrimental to accused.
    Refusal of charges to effect that jury could not consider piece of concrete with which accused’s son struck prosecuting witness was not error, since court would have been authorized to have charged relative to son’s being principal, but ignoring son altogether and refusing special charge would be more favorable than detrimental to accused.
    6. Criminal law &wkey;>368(!) — Assault made by accused's son by hitting prosecuting witness with piece of concrete during altercation admissible as part of res gestm.
    Assault made by accused’s son in hitting prosecuting witness with piece of concrete during altercation out of which prosecution for aggravated assault arose was part of res ges-tae, and refusal to withdraw from consideration of jury was not error.
    7. Criminal law <§=»l 186(4) — Court of Criminal Appeals cannot reverse for.refusal to give charge or in charging jury, unless entire record shows defendant was injured thereby.
    Court of Criminal Appeals, under Vernon’s Ann. Code Cr. Proe. 1916, art. 743, is unauthorized to reverse ease for refusal to give charges or in charging jury, unless entire record shows that same was calculated to injure rights of defendant, or that he had not had fair and impartial trial.
    On Motion for Rehearing.
    8. Criminal law &wkey;d086(I4)~Alleged faults in court’s charge must have been called to attention of trial court at time of trial to be subject to review.
    To call into review accuracy of court’s charge in submitting issues, 'alleged faults should appear from record to have been called to attention of trial court in specific manner at time of trial, in view of Vernon’s Ann. Code Cr. Proc. 19,16, arts. 735, 737a, and 743.
    9. Criminal law <&wkey;4086(!4)— Must have verified showing that exceptions to charge have been called to attention of and considered by trial judge before appellate court considers same.
    In absence of verified showing in record that exceptions to charge had been' called to attention of and considered by trial judge, with his ruling thereon, appellate court is precluded from considering complaints of charge.
    Commissioners’ Decision.
    Appeal from District Court, Parmer County; Reese Tatum, Judge.
    J. H. Aldridge was convicted of aggravated assault, and he appeals.
    Affirmed.
    A. B. Crane, of Raymondville, W. W. Kirk, of Plainview, and T. H. McGregor and A. L. Dove, both of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted and tried in the district court of Parmer county, and convicted on an aggravated assault, fined ¡¡>200, and given 30 days in jail. The indictment embraced five counts, but the court in his charge to the jury submitted only two counts; the second count charging assault with a prohibited weapon upon, and the third count charging assault with the intent to murder the prosecuting witness J. W. Reid.

The facts, briefly stated, upon the part of the state disclose that the prosecuting witness, Reid, was the superintendent of the ¡school at Earwell, and in said school there was a principal teaching agriculture. The defendant had a boy about 17 years of age taking agriculture, and it appears that he had been giving the teachers a good deal of trouble, and, on the date of the alleged offense, while in class, in substance remarked to the teacher that, if he had done so and so, the teacher would have raised hell with him. The teacher took him before the superintendent, and he admitted using the language, and the superintendent proceeded to give him about 8 or 10 licks with a piece of rotten water hose. The boy left school and went home. The superintendent went to town to mail some letters, and about the time that he got out of the oar he testified that he heard somebody call him, and looked <up and saw the defendant and his son, and he went up to where the defendant was, and the defendant accused him of beating up his boy, and he denied it, and told him he had given him a whipping, and the defendant replied, “No, you have beaten him up, and that is what we are going to do with you,” and then the defendant said; “Do what you are going to do.” The prosecuting witness testified that it then dawned on him that the defendant was talking to his son, who was then walking behind said witness, and just as he looked back the boy threw a piece of concrete and hit him behind the ear, which cut him to the bone, a gash about an inch long, and knocked him forward toward the defendant, and just as he raised his head he saw the defendant with a six-shooter, with which the defendant struck him under the eye, over the lip, cutting his lip through, and practically knocked out one of his teeth, rendering him unconscious at times, and hitting him over the head with said six-shooter. It was the testimony of the state that the prosecuting witness was doing nothing at the time he was assaulted.

Upon the part of the defense it.was contended that the prosecuting witness was not called, and that, when he came towards the defendant, the defendant spoke to him, and asked him about beating up his boy, and claimed that the witness stated that he would beat him up too, and ran his hand down in his pocket, and the defendant grabbed him, thinking that he was preparing to assault him with a weapon, and began to strike him with his six-shooter. The defendant claimed that he did not know that his son had struck said Reid with the concrete, and the defendant’s son claimed that he never saw his father hit the prosecuting witness with a pistol. The defendant also contended that he was a deputy constable, and had the right to carry a pistol, while it was .the contention of the state that he had prepared himself with a pistol and came for the purpose of assaulting the prosecuting witness.

The court upon this testimony properly charged the jury on both of said two counts in the indictment, that is of making an assault with prohibited weapon carried unlawfully, and also charged on assault with intent to murder and aggravated assault, and also charged on self-defense and apparent danger, and that the defendant, if he believed that he had a right to carry the pistol as deputy constable, should be acquitted of the charge of making an assault with a prohibited weapon, and in said charge ignored the actions of the boy altogether, except on the charge of self-defense, telling the jury that the defendant would have a right to protect himseif and his son against any attack or apparent attack by the said prosecuting witness.

There are a number of complaints raised by the appellant against the court’s charge relative to assault with prohibited weapon and assault with intent to murder, but, in view of the jury’s finding defendant guilty of aggravated assault, all of said complaints become immaterial in the consideration of this ease.

The appellant complains of the court’s charge on self-defense to the effect that same is misleading and confusing; we are of the opinion that the charge taken as a whole is not susceptible of said criticism urged.

Complaint is also urged to the action of the court in refusing to require the state to elect on which of the two counts it Would rely for a conviction. We are unable to see any merit in this contention, and, as we view the testimony, we think it was proper for the court to have submitted both of said counts to the jury, and in doing so there could be no injury to defendant, because the jury returned a verdict of an aggravated assault under the count charging assault with intent to murder.

It is urged that the court- was in error in submitting to the jury the third count in the indictment and the law relative to assault with intent to murder. It is contended that the evidence did not raise this issue. If there was any error in this contention, the verdict of the jury cured same by finding defendant guilty of an aggravated assault.

There is also complaint to the court’s action in failing to charge the jury that the defendant could not he found guilty of an aggravated assault under the second count charging hiin with malting an assault with a prohibited weapon. The court prepared blank verdicts covering the second and third counts in every particular, and the jury adopted the verdict of aggravated assault under the third count charging assault to murder, which eliminates this contention.

Complaint is made to the third paragraph of the court’s charge, because it is contended that the court did not affirmatively charge the jury that defendant would not be guilty of carrying a pistol if he had a contract or promise with the constable to pay him as much as $40 per month. There is no merit in this contention, because the court, at the instance of the appellant, gave his special charge No. 5, covering the issue complained of.

Complaint is urged to the refusal of the court to give to the jury the defendant’s special charge 7 and other special charges along the same line to the effect that the jury could not consider, the piece of concrete used by defendant’s son in striking the prosecuting witness nor the wound made by same, unless they believed that the defendant had in some manner caused the said son to hit said prosecuting witness. We fail to .observe any error in the court’s refusing to give said charges. Under the evidence in this case, as introduced by the state, we are of the opinion that the court would have been authorized to have charged the jury relative to the son being a principal in this case, but the court ignored that part of the son’s assault altogether, and we believe-in refusing to give said special charge it is more favorable to the defendant than detrimental; besides, the assault made by the son and the piece of concrete used were part of the res gestae in the transaction, and we are of the opinion that the court committed no error in refusing to withdraw that part of the testimony from the consideration of the jury; but, should we be in error in this particular, which we do not admit, still under article 743, Vernon’s Ann. Code Cr. Proc. 1916, we would be unauthorized to reverse this case in this particular because the law as announced in said article by the Legislature prohibits this court from reversing a case on refusal to give charges or in charging the jury, unless the entire record shows that same was calculated to injure the rights of the defendant or that he had not had a fair and impartial trial. We are unable to reach this conclusion or agree to- the contention made by the appellant on this point.

After a careful examination of the entire record, we are unable to reach the conclusion that the defendant has not had a fair and impartial trial or that the trial court committed errors .in the trial thereof. We are therefore, of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been'examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing, complaint is' made of the court’s charge in several particulars. In order to call into review the accuracy of the court’s charge in submitting the issues to the jury, it is essential that the alleged faults should appear from the record to have been called to the attention of the trial court in a specific manner at the time of the trial. See Vernon’s Tex. Crim. Stat. vol. 2, arts. 735, 737a, and 743; also Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703, and cases cited..

We find in the record a writing purporting to except to the cburt’s charge. It is, however, without any certificate of verification. In the absence of such certificate showing that the matter was considered by the trial judge and his ruling thereon made the subject of exception by the appellant, this court is precluded from considering the complaints of the charge. See Bargas v. State, 86 Tex. Cr. R. 217, 216 S. W. 172; Bird v. State, 84 Tex. Cr. R. 285, 206 S. W. 844; Wallace v. State (Tex. Cr. App.) 200 S. W. 1088; Nicolatte v. State, 85 Tex. Cr. R. 245, 211 S. W. 456; Thompson v. State, 88 Tex. Cr. R. 560, 228 S. W. 224; Wright v. State, 83 Tex. Cr. R. 559, 204 S. W. 767; Grissom v. State, 87 Tex. Cr. R. 465, 222 S. W. 237; Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790.

The motion for rehearing is overruled. 
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