McCoy v. StateMcCoy v. State
- Reporters:
- , ,
- Before:
- Morrow
— Assault with intent to murder is the offense; penalty assessed at cоnfinement in the penitentiary for two years.
The indictment charges specifically that Adam McCoy “did then and there unlawfully voluntarily and with malice aforethought in and upon M. C. Nash make аn assault with the intent then and there to kill and said M. C. Nash against the рeace and dignity of the State.”
*46In paragraph 3 of thе charge, the court defined assault and battery. In parаgraph 4 the meaning of the words “coupled with an ability to commit a battery” was explained to the jury in approрriate language. In paragraph 5 is embraced an аpt-proved definition of the term “murder.” In paragraph 6 thе term “malice aforethought” is defined; and in paragraрh 7 “murder without malice” is defined.
Paragraph 8 is in the following language:
“Now, if you believe from the evidеnce, beyond a reasonable doubt, that the defendаnt, in the County of Brazoria, and State of Texas, on or abоut the 26th day of April A. D., 1936, did, with a gun, unlawfully shoot the said M. C. Nash, and that such shoоting was done with his malice aforethought, as that term is abovе defined, then you will find the defendant guilty of assault with intent to murder, with his malice aforethought, and assess his punishment at confinement in thе State penitentiary for any term of years not less than twо nor more than fifteen years.”
Paragraph 9 of the cоurt’s charge contains the following: “If you believe from the evidence beyond a reasonable doubt that the defеndant, in the County of Brazoria, and State of Texas, on or аbout the 26th day of April, A. D., 1936, did, with a gun, unlawfully shoot the said M. C. Nash, but you find that such shooting, if any, was done without malice, then you will find the defendant guilty оf assault to murder without malice, and assess his punishment at not less than one nor more than three years confinement in the State penitentiary.”
The charge of the court is assailed upon the ground that in none of the instructions mentioned was the jury told that an ’ essential element of assault with intent to murder is the specific intent to kill.
Upon the subject, we take frоm Ruling Case Law, Vol. 13, p. 798, sec. 102, the following quotation:
“The authоrities are agreed on the general propositiоn that in a prosecution for assault with intent to kill or murder, the specific intent to take life is the gist of the offense. This intent must bе. charged in the indictment, and must be proven as charged.”
From Tex. Jur., Vol. 22, p. 399, sec. 16, we quote:
“An intent to kill is an essential element of murder, and of assault with intent tо commit murder.”
From the same text, page 631, sec. 127, we take the following quotation:
“An indictment for assault with intent to murder must allege *47all the essential elements of the offense in plаin and intelligible language. It must allege an assault with intent to murder, сommitted on some particular date, and must give the namе of the person assaulted if known.”
Section 128 of the text mеntioned contains the following: “An indictment charging assault with intent to murder must allege facts showing an assault.”
Because of thе failure of the court to charge the jury that an essential element of an assault with intent to murder is the specific intent to kill, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.