¶1On Motion for Rehearing.
¶2We have again examined the record in the light of appellant’s motion for rehearing. It is urged in the motion that the trial court committed error in refusing to instruct the jury that if they found that the assault was made with appellant’s fist they should acquit him. It is unnecessary for us to further consider whether appellant was entitled to this instruction. In our original consideration of the case, we overlooked the fact that the record fails to disclose that appellant filed any written objections to the charge of the court. We find in the record a requested charge, which appears to have been given, wherein the jury were advised that if they believed from the evidence that appellant made an assault and committed a battery upon the injured party merely with his fist, he should be acquitted of an aggravated assault. In the only bill of exception found in the record it is recited that appellant requested the court to instruct the jury that if they believed from the evidence that appellant made the assault merely -with his fist to find a verdict of not guilty. The bill recites that the court refused to so instruct the jury, but modified the instruction by advising the jury that they would acquit appellant of an aggravated assault in the event of such finding. The bill then recites that appellant “then and there excepted to the action of the court in refusing to give said special instruction in the form requested by him and excepted to the modification thereof made by the court.” When the court modified the requested charge and gave it in the modified form, it became the court’s charge, and if appellant was displeased with it, he should have filed written objections to the charge if he desired to preserve the point. His failure to file written objections to the charge as given precludes consideration of the refusal of the special charge requested, which was antagonistic to the instructions given. See Simpson v. State, 87 Tex. Cr. R. 277, 220 S. W. 777, and Glenn Jones v. State (No. 12150, opinion October 30, 1929) 20 S.W. (2d) 1067. The action taken was not equivalent to filing written objections to the charge.
¶3The motion for rehearing is overruled.