No. 1896. | Tex. Crim. App. | Oct 26, 1898
Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
There is nothing in appellant's motion to quash the indictment, it not being necessary to allege the means used in charging assault with intent to murder.
Appellant complains of the action of the court in admitting, over his *551 objections, the evidence of A.T. Wooten, S.L. Clark, and A.K. Ralston as to declarations of appellant, while in jail, not being cautioned, showing his animus towards S.P. Clark and A.T. Wooten. It appears that appellant was confined in jail on a charge of theft of cattle, and A.T. Wooten was a State's witness against him. The charge against him, on which, he was tried in this case, was for an assault with intent to murder A.T. Wooten; and the State introduced against him the following declaration made to A.K. Ralston, a deputy sheriff, while appellant was in jail, to wit: "If Wooten swears what I have heard he is going to swear against me, I will break a chair over his head, if in my power to do so." And also the following testimony adduced from S.P. Clark, made under the same conditions, to wit: "Appellant stated that if he ever lived to get out of this trouble, he would get even with Mr. Wooten and Mr. Clark." The court explains the admission of this testimony by the statement that the offense for which the defendant was under arrest was a charge of cattle theft, and the offense for which defendant is now being tried had not been committed, and no charge made against him with reference thereto, and it was admissible and material to show motive and malice. Our statute regulating the admission of confessions evidently has reference to the offense for which the defendant was then held in custody. See Code Crim. Proc., art. 790. It has been held, however, that the confessions of defendant can be used against him, if made in accordance with said article, if such confessions relate to some other offense or charge against appellant than the one for which he is held in custody. But such confessions relate to some past offense. We know of no case where statements, acts, or conduct of a defendant of a criminal character, while in jail, concerning an offense then being committed, or concerning some offense to be committed, have been excluded under this article. In Davis v. State, 19 Texas Criminal Appeals, 201, it was held that such evidence is admissible outside of the statute. To illustrate: Suppose A, a prisoner, should assault B, a fellow prisoner, while in jail; would the acts and conduct of A, including his declarations in connection with the offense, be excluded, because no warning had been given under the statute? Certainly not. Again, suppose A, the prisoner confined in jail, should assault B, the jailer, with a stick, — a weapon not necessarily deadly, — and should be subsequently tried for an assault with intent to murder, and the question should be whether or not the assault was made with the specific intent to kill; under these circumstances, would it be competent for the State to show by some fellow prisoner of A that prior to the assault he had stated that he intended to kill B, the jailer, and make his escape? We think that such testimony would be clearly admissible, without any infringement on said article of our Code of Criminal Procedure. We therefore hold that the court did not err in admitting said testimony.
Appellant also complains that under the facts of this case the court erred in telling the jury in his charge that an assault or an assault and battery may be committed, though the person actually injured thereby *552 was not the person intended to be injured. The contention here is that before appellant be guilty of the offense of an assault with intent to murder, he must have the specific intent to kill the person assaulted. We do not agree with this contention. An assault with intent to murder can be committed with implied as well as with express malice, and the statute defining this offense does not restrict the intent to kill to the person assaulted. The assault is only required to be with intent to murder; that is, to murder some one. And we hold that if A shoots at B with intent of his malice aforethought to kill and murder B., but accidentally shoots C, and inflicts a wound upon him, that the malice is carried over to C, and that this is an assault with implied malice to murder C.
Appellant further complains that the court erred in charging on the law of aggravated assault committed in a court of justice, and because the court erred in not charging on the law of aggravated assault with a deadly weapon. Inasmuch as it was a crucial point in the case whether or not appellant had the specific intent to kill at the time he made the assault, and the assault was made with a weapon such as might be regarded as deadly, and was also made in a court of justice, we think the same was calculated to mislead and confuse the jury. They were informed that if appellant made an assault on Wooten with a deadly weapon, with intent to kill him, it would be an assault with intent to murder. They were then told that if they did not believe that the State made a case of assault with intent to murder, they would then inquire whether or not it was an aggravated assault, and, if they found that same was committed in a court of justice, to find him guilty of an aggravated assault. Under such circumstances the jury might believe that no other circumstances except an assault in a court of justice would reduce to an aggravated assault; that if it was made with a deadly weapon, it must be an assault with intent to murder. We believe, under the facts of this case, that the court should have given a charge authorizing the jury to find defendant guilty of an aggravated assault, if they believed the assault was made with a deadly weapon, but not with the intent to kill. The evidence is by no means clear and strong, relieving the case of all reasonable doubt that appellant intended to take the life of Wooten. Whether he struck Wooten intentionally, or the chair was knocked out of his hands, is questionable. The attack was certainly not of a very violent character, and is rather a suggestion of bravado than a serious attack to take the life of either Clark or Wooten. At least, in our opinion, the jury should have been given a full charge on the features of the case which would reduce the offense to an aggravated assault. The judgment is reversed and the cause remanded.
Reversed and remanded.
HURT, Presiding Judge, absent. *553