Counsel for appellant call the attention of the court to the fact that the record fails to show that, before sentence was pronounced, the defendant was asked whether he had anything to say, etc., and insist that this omission is fatal to the conviction. Article 798 of the Code of Criminal Procedure is relied upon in support of this proposition. That article is as follows: " Before pronouncing sentence in a case of felony, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him.” There is no provision of the law which requires that it shall be anywhere recited in the record that this article has been complied with. It is not like the case of an omission in the record to show that the defendant had pleaded in the case; because the statute expressly requires that the plea of guilty and the plea of not guilty shall be entered of record on the minutes of the court. (Code Crim. Proc., Art. 538.) And, furthermore, the plea of the defendant is made a part of the judgment entry in the case. (Code Crim. Proc., Art. 791.)

*311Article 792 of the Code of Criminal Procedure defines a sentence as follows: “A sentence is the order of the court, made in presence of the defendant, and entered of record, pronouncing the judgment and ordering the same to be carried into execution in the manner prescribed by law.” It is not required that the sentence shall show that before it was pronounced the defendant was asked if he had anything to say why it should not be pronounced. It would be more formal and more in accordance with the general practice if it contained such recital, but there is nothing in the law which would authorize us in holding that the omission from the record of this formality is error sufficient to set aside the sentence. We think in such case we are required to presume that the trial court complied with the law, and asked the defendant the statutory question. If a case should arise wherein a defendant had been refused by the court the privilege of the question, and the right to answer it in a legal manner, and such action of the court was presented to us by proper bill of exceptions, we would undoubtedly set aside the sentence, and accord to the defendant his legal right to be heard in bar thereof. But where such a state of case is not presented, we will presume that the trial court has obeyed the directions of the law in pronouncing the sentence.

While the charge of the court is in some respects perhaps not strictly accurate, still, we think, as a whole it is a fair and substantially correct presentation of the law applicable to the case, and contains no material error. In explaining the law as to the elements of an assault it follows the parallel case of Higginbotham v. The State, 23 Texas, 575, in which the acts constituting the assault were very similar to the acts proved in this case. In that case it is said: “The law has not established as a criterion in determining an attempt, that the gun must be presented, or aimed, or the lock pulled back, or .triggers of a rifle sprung, or any other stage in the series of acts that may be performed in committing an assault. It is sufficient that there be an act done indicating an intention to commit a battery immediately, coupled with the ability to do it.” We think the facts of this case show such acts on the part of the defendant as constituted an assault within the meaning of the law.

It is contended by appellant’s counsel that the proceedings in this case are illegal and void because B. H. Turner, who purports to be the clerk of the District Court of Bell county, was not such clerk de jure, because he had vacated said office by *312accepting an appointment as deputy clerk of the County Court of said county. This question was presented to the court in a motion in arrest of judgment, which motion was overruled.

It is provided that, “A motion in arrest of 'judgment shall be granted upon any ground which would be good upon exceptions to an indictment or information for any substantial defect therein.” (Code Crim. Proc., Art. 787.) By reference to Article 528, Code Criminal Procedure, it will be found that there is no exception allowed to the substance of an indictment except such as are in that article specified. It is clear, therefore, that the ground of the motion in arrest in this case is not one allowed by the statute, and the court did not err in overruling the motion. Furthermore, we think it was not competent, in a collateral way, to question the authority of Turner to perform the duties of clerk of the District Court. He was such clerk de facto, if not de jure, and his acts as such, in this case, were valid.

We have discovered no error for which the judgment of conviction should be set aside, and it is therefore affirmed.

Affirmed.

Opinion delivered May 30, 1883.