Alfred Johnson v. The State, 26 Tex. 117

Bell, J. The motion which has been submitted for a writ of certiorari to bring up a more perfect record, 'is insufficient, because-it does not clearly show that the appellant entered into recognizance in the court below, or that there was any judgment of the-court below upon the motion to strike out the charge of aggravation from the indictment. The case must therefore be dismissed for want of a recognizance.

It is proper however to say that the indictment does not purport to be an indictment for an aggravated assault, and is not necessarily to be considered as such, although it is plain from the charge of the court, and other portions of the record that it was so treated in the court below. The indictment was not a good one for an-aggravated assault, because it did not charge that it was known or declared to the defendant that the person assaulted was an officer discharging an official duty.

It did not vitiate the indictment as an indictment for a simple assault, that it alleged that the person assaulted was then and there an officer in the lawful discharge of his duties, though the court below ought to have instructed the jury that the defendant could not he punished for an aggravated ssaault upon such an indictment. The appeal is dismissed for want of a recognizance. Appeal dismissed.