
    BAGLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.)
    1. Assault and Battery (§ 78) — Aggravated Assault — Indictment.
    An indictment charging that defendant committed an aggravated assault and battery on the person of E'd Smith, and did then and there beat, bruise, and wound the said Ed Smith with some hard instrument, the name of which was to the grand jurors unknown, and did then and there inflict serious bodily injury upon the said Ed Smith, sufiiciently charged the offense of aggravated assault and battery.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 116-122; Dee. Dig. § 78.]
    2. Assault and Battery (§ 54) — Aggravated Assault — “Serious Bodily Injury.”
    In a prosecution for aggravated assault and battery, an instruction that by the term “serious bodily injury” is meant such injury as gives rise to apprehension — an injury which is attended with danger — was proper.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54.* For other definitions, see Words and Phrases, vol. 7, pp. 6420, 6421.]
    3.Assault and Battery (§, 92) — Aggravated Assault — Evidence.
    Evidence held to warrant a verdict convicting defendant of aggravated assault and battery.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 02.]
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    Tom Bagley was convicted of aggravated assault and battery, and be appeals.
    Affirmed.
    M. B. Parcbman and Lane & Lane, all of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault and battery.

The record is before us without bills of exception. Tbe motion for new trial sets up tbe court erred in permitting the state to prove acts and declarations of other persons than tbe defendant, as shown by defendant’s bill of exceptions; but tbe record does not contain such bill of exceptions.

It is contended that the indictment does not charge an offense against tbe laws of tbe state, and is not in plain and intelligible words. We do not think there is any merit in this. Tbe indictment charges appellant committed an aggravated assault and battery on the person of Ed Smith, and did then and there beat, bruise, and wound the said Ed Smith with some bard instrument, tbe name of which is to the grand jurors unknown, and did then and there inflict serious bodily injury upon tbe said Ed Smith. We are of opinion that this sufficiently charges tbe offense of aggravated assault and battery.

The- motion for new trial complains tile court erred in that portion of its charge wherein the court instructed the jury that by the term “serious bodily injury” is meant such an injury as gives rise to apprehension • — an injury which is attended with danger. This is a misdemeanor, and no special charges were asked. The only criticism of the charge is found in the motion for new trial, as above stated; but we are of opinion, had a proper exception been reserved and the matter properly presented, that there was no error in the definition of the term “serious bodily injury” as given by the court.

The two remaining grounds of the motion for new trial complain that the verdict of the jury is not supported by the evidence. The state’s evidence makes a case, and shows that appellant went to the house of the assaulted party, Smith, and called him out at night, and induced him to go with him in a buggy some distance, where he was intercepted by a crowd, taken out, overpowered, stripped, and given a very severe beating with some sort of an instrument that is not accurately described, but seems to have been an instrument capable of inflicting great injury. The negro was beaten badly with this instrument about the back and hips, which confined him to his bed and room for three weeks. The doctor testified he visited him the next day, and he was pretty badly beaten, and describes the bruises, and shows that blood was oozing from the wound on the hips, and that he had been struck on the head with some blunt instrument, causing a scalp wound which bled freely. The injured party swears one of the parties struck him on the head with a pistol. The assaulted party testified that the reason assigned for beating him was that he had had arrested one Tom Black, charging him with “bootlegging,” which term indicates the illicit sale of intoxicating liquor in local option territory. The assaulted party admitted the fact that he was connected with having Tom Black arrested on this account. The time of the night when the whipping occurred enters somewhat into the case. The injured party testified when they first came to his house it was something like half after 10 or 11 o’clock. Just how long they had him in charge, and before they whipped him, and concluded with the whipping, is not definitely shown, and the matter is more or less a guess. The father of the injured party testified when the thing was over he went to hunt his son. There had been some shots fired about the time of the whipping, or just after, which seemed to have created serious solicitude on the part of the father and wife of the injured party. The assaulted party finally reached the residence of his father. The defendant’s theory was alibi, and he introduced a lot of testimony to the effect that he and Black and others, whom the injured party identified as being with the crowd, were in the town of Marshall, some four miles distant, at 11 o’clock, or about that time. Some of the witnesses, perhaps, placed it as late as a quarter after 11. It is unnecessary to go into a detailed statement of the testimony of these witnesses pro and con. If the evidence for the state is to be believed, then appellant, Black, and others gave the assaulted party an unmerciful and brutal beating. Somebody whipped him, and whipped him badly; and he identified appellant and others as being the parties. They claim an alibi. These matters were submitted to the jury. The jury decided the question adversely to appellant and in favor of the state,- and this court would not feel justified in setting aside the verdict.

It is therefore ordered that the judgment be affirmed.  