Bartlett v. State

21 Tex. Ct. App. 500 | Tex. App. | 1886

White, Presiding Judge.

As set forth in the indictment, the charge is (omitting formal allegations) that defendant “did then and there, wilfully, feloniously, and of his malice aforethought, make an assault in and upon the person of one James H. Cluck, then and there of his malice aforethought, him, the said Cluck, to then and there murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

Opinion delivered June 9, 1886.

Manifestly the object of the pleader was to charge “ an assault with intent to murder,” but it is equally manifest that he has failed to do so, because he has omitted to charge directly and positively the “ intent.” “ Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment.” (Code Crim. Proc, Art. 423; Morris v. The State, 13 Texas Ct. App., 65; Black v. The State, 18 Texas Ct. App., 124; see also Willson’s Crim. Forms, No. 357, p. 161, and authorities cited.) It is as essential to allege the specific intent as it is essential to prove it in cases of assault with intent to murder.

Because the indictment in this case is fatally defective, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.