Brooks v. State

ON MOTION FOR REHEARING.

MORROW, Presiding Judge.

The contention is made that the conviction for an aggravated assault cannot be had under an indictment for an assault with intent to murder. Such an indictment includes aggravated assault and simple assault. See Bittick v. State, 40 Texas Crim. Rep., 117; Green v. State, 8 Texas App., 71, and many other cases collated in Branch’s Ann. Tex. P. C.,1 sec. 1628.

In the present instance, the record shows that the appellant was tried under an indictment for assault with intent to murder and the jury returned a verdict of aggravated assault, which…