
    McCAULEY v. STATE.
    (No. 8055.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1924.
    Rehearing Denied March 26, 1924.)
    1. Assault and battery <§=>92, 100 — Evidence held to support conviction for aggravated assault and sentence imposed.
    ’Evidence held to support conviction for aggravated assault, and a fine of $500 and confinement in the county jail for one year.
    2. Criminal law <§=>! 159(2) — 'Verdict not disturbed when supported by evidence.
    When the jury’s finding is supported by sufficient evidence, the Court of Criminal Appeals is not authorized to disturb the verdict.
    3. Assault and battery <§=>95 — Discretionary with jury to ássess punishment within limits fixed by law.
    The statute places with the jury the discretion to assess punishment for aggravated assault within the limits fixed by law.
    On Motion for Rehearing.
    4. Criminal law <§=> 1144(6) — Presumed that venue was as charged, in absence of Issue in trial court.
    Under Code Cr. Proc. art. 938, the Court of Criminal Appeals must presume that the venue was as charged, in the absence of a showing that venue was made an issue in the trial court.
    5. Criminal law <§=>1038(1) — 'To secure review of charge, objection must be made in writing distinctly specifying grounds of objection.
    Under Code Cr. Proc. art. 735, it is imperative that, in order to secure a review of the court’s charge, accused must present his objections thereto in writing, distinctly» specifying the grounds of objections.
    Appeal from Limestone County Court; H. F. Kirby, Judge.
    Ed McCauley was convicted of aggravated assault, and he appeals.
    Affirmed.
    O. F. Watkins, .of Mexia, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is aggravated assault; punishment fixed at a fine of $500 and confinement in the county jail for one year.

We are favored with no brief for the appellant; neither do we find any bills of exception complaining of the procedure.

The evidence coming from the state’s witness is substantially this: The injured party, Drew Phillips, was visited at his home by Hogan Beatty, federal prohibition, officer, Ed McCauley, Ed Wooton, and G. R. Wright. Phillips was advised by them that their purpose was to search his premises for intoxicating liquors or for evidence that he was manufacturing intoxicating liquors. They possessed a search warrant. They claimed that they had found a worm in the loft of Phillips’ house and placed him under arrest, accused him of manufacturing intoxicating liquors, and demanded that he reveal the location of his still. He denied that hq had one or that he had been or was engaged in the manufacture of intoxicating liquor. He was cursed and abused and taken to various places upon the premises while the search was cohtinued, but no still was found, nor was any liquor discovered. The searching party divided. Two of them — Wooton and the appellant — had Phillips in their custody. Appellant mashed Phillips to the ground and held his foot on his neck while Wooton whipped him with a stick about four feet long and one inch in diameter at one end and one-half inch in diameter at the other end, and inflicted severe pain, rendering Phillips’ back blue from the hip to below his knee which caused him continued suffering -and inability to work from the time of the offense, which took place on the 28th of December, until the day of the trial on the 16th of April following. Phillips offered no resistance. He was taken to jail, and while there he sent for a physician, who testified that upon examination Phillips claimed and seemed to be suffering considerably; that he was unable to find anything seriously wrong with him but gave him a hypodermic to ease his pains and produce sleep. He saw marks and bruises upon the body of Phillips and noticed something the matter with his testicles. The lights in the jail where the examination was made were bad.

XJhillips’ wife described the injuries, suffering, and pain of Phillips, and corroborated his statements. Hines, who was present, also arrested and taken to jail together with Phillips, and later released by the United States Commissioner, together with the appellant, testified that the appellant and Wooton took Phillips down the pasture, but that he did not see them whip him or hear the licks, but after they returned he heard Beatty ask if he (Phillips) told them, and afterwards say: “Let us get 'a trace chain and hang this s-of a b-that some one said, “No; there has been too much whipping already.” Phillips, on the way to jail, complained of his injuries and of having been whipped, and also complained of them while in jail. Garrett, a citizen of Groesbeck, testified that after the release of Phillips, he saw injuries upon him; that his back was blue from his hips to the knees;' that one of his testicles waq very black and swollen. Wright, one of the officers, testified that he took part in the search of Phillips’ premises and was under the direction of Beatty, the federal prohibition officer; that appellant was one of the party making the search; that during the time which Phillips was in custody of the appellant and Wooton they were separated only a short time; that they were not out of sight of the witness more than 10 minutes. The wife of Phillips was not able to identify the appellant on the trial. No testimony was given upon ijehalf of the appellant except that of Wright, to which reference has been made.

The only question arising from the record is the sufficiency of the evidence. That Phillips, while in custody of the officers, was assaulted by them and received at their, hands the injuries described was established without serious controversy. This court is not warranted in holding with the testimony before it that the injuries were not serious. The finding of the jury that the assault was made in the manner described in the indictment, and that serious injuries were inflicted being supported by sufficient evidence, this court is not authorized to disturb the verdict. The statute placed with the jury the discretion within the limits fixed by law to assess the punishment. Inglen v. State, 36 Tex. Cr. R. 472, 37 S. W. 861; Wagner v. State, 87 Tex. Cr. R. 47, 219 S. W. 471.

The penalty assessed is but half of that allowed by law, and greater punishment has been held not excessive upon facts not more aggravated. Odom v. State, 82 Tex. Cr. R. 580, 200 S. W. 833, and cases there cited.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In his motion for rehearing appellant argues at length that the evidence fails to show that the offense was committed in Limestone county, the county in which the offense was laid by the indictment. We are commanded by the terms of article 938, C. G. P., to presume that the venue was as charged, in the absence of a showing that this was made an issue in the trial court. There is nothing in the record that reflects any such contention advanced on the trial, nor is there any bill of exceptions from which we may learn such fact. We have no choice but to follow the mandates of the written law.

Appellant alko complains at length and cites authorities to support various attacks made by him upon the charge of the court. We find in the charge no fundamental error. The court gave a charge in writing in which he submitted the law of aggravated assault and of simple assault in accordance with charges usually given when such are the issues. No exceptions were reserved to the charge. It is the imperative requirement of our statute (article 735, O. C. P.) that, in order to secure a review of the charge of the court, the accused must present his objections thereto in writing, distinctly specifying the grounds thereof. This not having been done, we regre“" we cannot consider appellant’s complaint ,pf the form of the charge on principals and the failure of the court to give to the jury the converse of the law of principals, as now here contended for by appellant’s attorney.

Finding no error in the record, the motion is overruled. 
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