¶1This is a conviction for aggravated assault and battery. In his charge to the jury the judge stated that the penalty for this offense is a fine of not less than twenty-five dollars nor more than five hundred dollars, and imprisonment in the county jail not less than one month nor more than two years,, or by such fine without imprisonment. This instruction is erroneous in stating the maximum of punishment to be five hundred dollars, and that the punishment maybe “by fine without im-. prisonment.”
¶2The language of the statute is as follows: “The punishment-for an aggravated assault or battery shall be fine not less than,, twenty-five nor more than one thousand dollars, or imprisonment in the county jail not less than one month nor more than two. years, or by both such fine and imprisonment” (Penal Code, Art. 498.) However harmless may have been this error, it is fundamental, and requires the conviction to be set aside. (Gardenhire v. the State, 18 Texas Ct. App., 565; Howard v. The State, 18 Texas Ct. App., 344; Veal v. The State, 8 Texas Ct. App., 477.)
¶3The judgment is reversed and the cause is remanded for a new trial.
¶4Reversed and remanded.