41 Tex. 385 | Tex. | 1874
It is objected to the indictment that the words constituting the alleged threat are not set out. This objection was not raised in the court below. The indictment charges that the defendant “ did then and there unlawfully, feloniously, and seriously threaten to take the life of B. J. Harvey” and of others named. This is substantially in the language of the statute creating the offense. (Pas. Dig., art. 2864.) That is, as it has often been held, sufficient when the statute sets out in the definition the specific facts constituting the offense, and does not define or describe the offense by the use of generic terms. The statute in this case presents two distinct facts, which concurring constitute the offense, one of which is the act of threatening to take life, and the other is the then existing serious intention entertained to execute it. A threat to take life is a definite single act, capable, it is true, of being performed in different ways by the use of different words, j nst as in the case of an assault. An assault is the unlawful attempt to commit a battery. The act involved in its commission may be performed in various ways and
It is contended that the indictment should aver that the threat was not made by defendant to protect himself or prevent the commission of some unlawful act. This argument is founded upon art. 6588, Pas. Dig., which is no part of the definition of the offense. Its object is to expressly indicate that those facts, or either of them, concurring with and being the object of the threat, would relieve it from criminality, just as it is said in the code, in reference to an assault, that to point an unloaded gun at one ip not an as-' sault. That mode of explaining what acts in connection
Another objection made to the indictment is that the threat is conditional. It was in substance that, if the persons addressed continued to put up the fence on lot 111, where they were then at work for that purpose, that he would kill them. If the condition in the threat requires ' something to be done, or to be left undone, that the party threatening has no right to require, it must generally be held to he tantamount in legal effect to an unqualified threat. It would be similar to the case where one man should point a loaded gun at another in anger, accompanied with the declaration that he would shoot him if he did not get on his knees, or do something else which he had no right to require of him. In such a case it would be an assault consummated, and not relieved by the condition contained in the accompanying declaration. (Bell v. The State, 29 Tex. 494; 2 Russell, 717, 718.) The evidence tended strongly to .show that Harvey, one of the persons threatened, who had the others engaged at work about the fence, had been previously put in possession of the lot 111, where they were at work, by the sheriff of Panola county, who had taken possession of it under a writ of sequestration in a suit brought by Harvey against the defendant to try the title to said lot; that defendant had failed to give the bond required of a defendant in such a case, and that Harvey had given the bond as plaintiff therein. There was nothing shown in contradiction of this. The defendant claimed the lot as part of his homestead, and sought to exercise ownership and exclusive control over it on that account. However sacred the homestead rights may be under our Constitution and laws, they
It was objected, also, that the verdict of-the jury was contrary to the charge of the court and contrary to the law and evidence. The charge of the court, though very correct, was certainly as full and favorable to the defendant as the law would permit. There is very little, if any, substantial discrepancy in the testimony of the witnesses, and the facts as presented fully authorized the jury to find the verdict which they did.
Affirmed.