
    LUTRALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 3, 1912.)
    1. Criminal Law (§ 824) — Triai^-Instruc-tions — Misdemeanor Cases.
    The court is not required to give instructions in a misdemeanor case unless requested to do so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    
      2. Criminal Law (§ 1090H) — Appeal—Bill of Exceptions — Misdemeanor Cases — Necessity.
    No error in instructions can be considered on a misdemeanor appeal, unless excepted to at the time and a bill of exceptions reserved.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803-2827; Dec. Dig. § 1090.]
    3. Criminal Law (§ 1056) — Appeai>-Pres-entation Below — Errors in Instructions — Misdemeanor Case.
    In order to assign error on appeal to charges given in writing in a misdemeanor case, accused must except thereto at the time and himself submit a written charge.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    4. Criminal Law (§ 1056) — Appeal—Presentation Below.
    Though a special charge, requested by accused in a misdemeanor case, presenting his theory, could have been properly given, refusal to give it was not reversible error where he did not reserve an exception to such failure.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    Appeal from Jack County Court; W. E. Fitzgerald, Judge.
    John Lutrall was convicted of simple assault, and be appeals.
    Affirmed.
    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
    
   HARPER, J.

Appellant was prosecuted under an information and complaint charging Mm with making an aggravated assault on Jack Holt, and when tried he was adjudged guilty of simple assault, and his punishment assessed at a fine of $5. While the information contained two counts, yet the court in his charge submitted only the first count, therefore we shall not consider the second count. And the defendant being convicted of a simple assault only, only such matters assigned as relate to a conviction of this grade of assault will be considered.

In a case where a person is prosecuted for a misdemeanor, the court is not required to give to the jury any charge unless requested so to do, and if he does charge the jury, no error contained therein can be considered unless excepted to at the time and a bill of exceptions reserved. As there are no bills of exception in this record, the matters assigned in the motion for new trial complaining of the charge of the court cannot be considered by us. [3] In a misdemeanor case, wherein the court submits a written charge to the jury, if appellant desires to assign any errors in regard to such charge, he must except at the time to such charge and submit a written charge in regard to such matter, and, if he does not do so, this court will not pass thereon. The Legislature in its wisdom, and this court in its former decisions, have adopted different rules in regard to prosecutions and convictions for misdemeanors and for felonies. Whether or not it was proper to lay down different rules in regard to the two different grades of offenses is not for us to discuss. It is not an open question, and it is the law of this state that in misdemeanor cases, if one desires to complain of any portion of the charge, he must except to it at the time and request charges curing such errors, and if special charges are asked, he must except to the failure of the court to give them, or such matters will not be considered on appeal. Inasmuch as the court in his charge submitted only the first count in the information, and submitted both aggravated and simple assault, and inasmuch as the jury found, defendant guilty of only simple assault and assessed the lowest penalty, no such error is presented as would cause a reversal of this case.

No exceptions were reserved to the evidence, or to the charge of the court, or failure of the court to give the only special charge requested by defendant, and while it would have been proper for the court to have given the special charge as presenting defendant’s theory of the case, yet as no exception was reserved to the failure of the court to do so, and the charge requires the jury to find affirmatively against this issue, it does not present reversible error.

Neither can we consider the ground that one of the jurymen could not read nor write. While in the motion the matter is sufficiently alleged to bring in review this question, yet no evidence is offered sustaining the motion.

The judgment is affirmed.  