
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Indictment and Ineobmation (§ 119)— Construction — Surplusage.
    A complaint, charging that accused “did on November 10th, and before the making of this complaint, then and there did” assault another is not bad for indefiniteness, for the first “did” may be disregarded as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    2. Assault and Battery (§ 96) — Prosecution — Instructions.
    In a prosecution for aggravated assault, where the court defined simple assault as the use of any unlawful violence upon the person of another with the intent to injure him, and charged that a simple assault becomes aggravated when the instrument used produces serious bodily injury, the omission of the words “with intent to injure” in the latter charge does not constitute reversible error.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    Appeal from District Court, Young County; E. W. Fry, Judge.
    Cabell Johnson was convicted of aggravated assault, and he appeals.
    Affirmed.
    Arnold & Arnold, of Graham, for appellant. C. E. Lane, Asst. Atty. ,Gen., for the-State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at 60 days’, confinement in the county-jail.

In the agreed statement of facts it is admitted that appellant assaulted Bryan Terrell, striking him on the head with a bottle of whisky, and inflicting serious bodily injury.

The record presents but two questions for review. Appellant moved to arrest the judgment, the complaint alleging that appellant “did on or about the 10th day of November, 1912, and before the making of this complaint, then and there did,” etc; he contending that the use of the word “did” twice, as above stated, rendered the complaint vague, indefinite, and meaningless. The court correctly overruled the motion. The use of the word twice does not render the complaint meaningless, nor uncertain, but the complaint succinctly charges the offense of aggravated assault when taken as a whole, and by treating the word “did,” where first used, as surplusage, the offense would be charged accurately in the complaint, and by leaving it in the complaint no other meaning could be given to the language of the complaint. Branch’s Crim. Law, § 905.

The other complaint is that in submitting the assault the court did not fequire the jury to find that appellant assaulted Terrell with the intent to injure him. In defining assault the court instructed the jury: “The use of any unlawful violence upon the person of another, with the intent to injure such a person, is a simple assault, and a simple assault becomes aggravated when the instrument used produces serious bodily injury.” As there is no question of innocent intent raised by the evidence in the case, and as the court had thus defined- assault, the omission of the words, “with intent to injure” later in the charge, no reversible error was committed. This is a misdemeanor, and no special charge was requested in regard thereto. Did the evidence raise the issue that there was no intent to injure, a more serious question would be presented.

The judgment is affirmed.  