
    MUNOZ v. STATE.
    (No. 4571.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Indictment and Information <&wkey;192 — Conviction fob Lessee Offense — Assault with Intent to Muedee.
    Accused may be convicted of aggravated assault, although the evidence would sustain a conviction for assault with intent to murder.
    2. Criminal Law &wkey;>193% — Former Jeopardy — Assault.
    Accused’s conviction for aggravated assault might be pleaded in bar of a subsequent prosecution for assault with intent to murder, if such higher offense was complete when the lower offense was committed.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Santiago Munoz was convicted of aggravated assault, and appeals.
    Affirmed.
    E. B. Etendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J;

Appellant was convicted of aggravated assault; his punishment being assessed at one year and six months imprisonment in the county jail.

The contention mainly relied upon for reversal is that the court should have instructed the jury to acquit, because the evidence showed an assault with intent to murder, instead of aggravated assault, and that the facts showed only an assault with intent to commit murder. This is presented in several ways. We cannot agree with appellant’s contention on this proposition. The prosecuting officers had all the facts before them, and took the affidavit as a basis for the information charging aggravated assault. The evidence doubtless would justify a verdict for assault to murder, had appellant been tried upon that theory; but it occurs to us, under the authorities and law as understood, that, while the facts might have justified a higher conviction, it would not be reversible error for the state to carve out an inferior degree of an offense, if it was included within the possible higher offense, and that the conviction for the offense carved could be pleaded in bar of a prescution for the higher offense, if the higher offense was complete at the time. The authorities sustain this proposition. Among other cases, we refer to Butler v. State, 48 Tex. Cr. R. 529, 89 S. W. 647. This is practically the only question in the case.

The judgment will be affirmed.  