The exceptions taken to the indictment, are, that it is vague and uncertain, and that the facts stated therein do not constitute an offence. The body of the charge is as follows: “ In and upon one George W. Taylor, in the peace of “ God, and said State of Texas, then and there being, did make a “violent and aggravated assault, with a pistol; and did then “present the said pistol, at said George W. Taylor; and did “then and there shoot at said George W. Taylor, with intent to “kill; contrary to the form of the statute,” &c. This indictment laid the charge at a time antecedent to the adoption of the Penal Code, though it was found and presented afterwards. The prosecution, in the mode of procedure, should conform to *213the rules prescribed in the Code, being the law in force at the time, during which it was instituted and carried on. Our laws, previous to the adoption of the Code, recognized the grades of common, and of aggravated assault, but never before attempted to draw, so precisely, the distinction between them. The latter always included the former. (Cotton v. The State, 4 Tex. Rep. 264; Gardenheir v. The State, 6 Id. 348.) In the case of Norton v. The State, 14 Tex. Rep. 394, it is said, “wherever there are such aggravations attending the eommis- “ sion of the offence, as the use of bludgeons, missiles, or instru“ments or weapons of any kind, capable of inflicting injury “ beyond what may ordinarily be inflicted by a blow with the fist, “and used in such manner as to be likely to inflict injury, and “especially when so used as to cause a wounding, the offence “must be deemed to be of an aggravated nature, within the “meaning of the statute.”

In the indictment now under consideration, the assault is sufficiently well stated, and must amount, at least, to a common assault, rejecting, as surplusage, the allegations in relation to its being “violent and aggravated,” and being made with a “pistol.” These words could not vitiate the indictment, as a charge of a common assault. It is not necessary, however, to take this view of it, to sustain the indictment; for it is obvious, that something more was intended, by using them in connection with the assault charged. Under the description of what may constitute an aggravated assault, as above quoted from the case of Norton v. The State, these words were used to indicate the facts of aggravation, necessary to describe that offence. Their object is to show, that the assault was not common, but violent and aggravated, by the use of a pistol; and that such deadly weapon was used, in a manner likely to inflict serious injury, by shooting at said Taylor, with intent to kill him. This surely fills the full measure of an aggravated assault, as contemplated by the statute. Indeed, it states more than -is necessary to constitute such offence. What is stated about the pistol, is intended as descriptive of the facts of aggravation *214merely, to raise the grade of the assault charged, from common to aggravated.

It is not necessary to state that the assault was unlawfully committed. The transaction imports illegality, on its face; and if there were circumstances that made it lawful, the burden rests on the defendant to show them. It is not necessary for the State to prove, as a distinct fact, that the assault was unlawful. All assaults committed on freemen are regarded as unlawful, until they who commit them establish an excuse or justification. It is therefore not necessary to allege that it was unlawfully done. (2 Arch. Crim. Pl. 282; Code of Crim. Proced. (Texas) Art. 396.)

On both these grounds, we think the court erred'in sustaining the exceptions to the indictment. Judgment reversed and cause remanded.

Reversed and remanded.