Wheeler, J. The 57th

Section of the Act of 1848, concerning crimes and punishments, limits the punishment for a common assault, to a fine of one hundred dollars, or imprisonment for fifteen days. But the next succeeding

Section provides that if the offence is of an aggravated nature, the offender may be punished by a fine not exceeding two hundred dollars and imprisonment not exceeding six months. (Dig. Art. 553, 554.) Whether the offence be of an aggravated nature must be determined by the jury, upon the evidence. But it is not necessary that they should embody in their verdict a distinct finding to that effect. This point was, in effect, determined in the case of Cotton v. The State. (4 Tex. R. 260.) The indictment is the same, whether it be proposed to prove an aggravated assault or not.

Under the present indictment, it was competent for the jury to find the defendant guilty of an assault with intent to murder, or a common, or an aggravated assault, as they might estimate the degree of guilt, from the evidence. They evidently were of opinion that the defendant was guilty of an aggravated assault, and assessed the damages accordingly. The objection that the indictment was not properly signed, is answered by our opinion in the case of Eppes v. The State. (10 Tex.

R.) The remaining objection, that is, that the indictment did not appear to have been filed, could not avail the defendant, especially after verdict. It appeared of record, that the indictment was regularly found and returned into Court by the grand jury ; and the omission to mark it filed, was a mere clerical omission, which did not affect the validity of the indictment, or the legality of the conviction. We are of opinion that there is no error in the judgment and that it be affirmed. Judgment affirmed.