rehearing">

ON MOTION FOR REHEARING

DICE, Judge.

In his motion for rehearing, appellant complains of our failure to pass upon his contention that the court erred in overruling his motion to quash the first count of the information on the ground that the allegations therein were insufficient to charge the offense.

The information contained two counts which charged that on or about the 11th day of May, 1959, the appellant did make an aggravated assault upon the female named therein.

Both counts were submitted to the jury and a general verdict of guilty was returned by the jury.

The first count, in charging that appellant committed an aggravated assault upon the female, alleged that he “did then and there place his hands and arms on and about the person of the said***, and did then and there by said means inflict disgrace upon the said***and by the use of such indecent familiarity did cause the said***to feel a sense of shame.”

This count of the information appears to have been drawn under subd. 6 of Art. 1147, V.A.P.C. which provides that an assault and battery shall become aggravated “when the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault and battery with a whip or cowhide.” It is held that this subdivision of the statute does not limit the *175character of the assault to the use of a whip or cowhide but the use of any means naturally tending to disgrace the assaulted party may be an aggravated assault. Gray v. State, 158 Tex. Cr. R. 214 S.W. 2d 391. We find the allegations of the first count of the information sufficient to charge an offense under subd. 6 of the statute.

It is observed that if, for any reason, the court should have granted appellant’s motion to quash the first count of the information, the conviction may be sustained under the second count which charged an aggravated assault when committed by the adult male upon a female as defined in subdivision 5 of Art. 1147, supra. The jury’s general verdict could be applied to this good count of the information which is supported by proof in the record. 42 Tex. Jur. par. 373, pages 478-480; and Brunk v. State, 109 Tex. Cr. R. 474, 6 S.W. 2d 353.

We have again examined the record in the light of appellant’s remaining contention and remain convinced that a proper disposition was made of the case in our opinion on original submission.

The motion for rehearing is overruled.

Opinion approved by the Court.

Citation profile

Relationships

How this case has been treated — in progress