Peterson v. State
12 Tex. Ct. App. 650
Tex. App.
1882
Check Treatment
Willson, J.

The indictment charges that the defendant, “on the 14th day of April, 1881, in Brazos county, Texas, did, with malice aforethought, kill Siddie Acco, a Mexican, by cutting him with a knife.” Upon this indictment the defendant was convicted of an assault with intent to murder Siddie Acco, and her punishment was assessed at confinement in the penitentiary for five years.

• In the case of Dwyer v. State (ante, p. 535), decided at the present term, we held that an indictment for the crime of murder in the above form was sufficient, as it alleges every act and fact constituting the offense.

It is now further objected to this form of indictment that, notwithstanding it may be sufficient to charge murder, yet it will not be sufficient to support a conviction for assault with intent to commit murder. While the argument of counsel" for defendant, in support of this contention, was very ingenious, we think it paradoxical. It is in effect a denial of the axiom that the greater includes the lesser. In murder there is always an assault to commit murder. When an indictment charges murder, it necessarily embraces an assault to commit murder. The Code of Criminal Procedure, art. 714, provides that murder includes all the lesser degrees of culpable homicide, and also an assault with intent to commit murder. It appears to us that this article of the Code is a conclusive answer to the position assumed by the learned counsel for defendant. We have carefully examined the authorities cited by them upon this question, and we do not think they conflict with the conclusion we have arrived at, and that is, that in charging murder all the elements which make the offense of assault with intent to murder are necessarily included.

The court, in its charge to the jury, when explaining *656the difference between an assault with intent to murder, and an aggravated assault, uses this language: “The -offense, if any, would not be reduced to an aggravated assault, if you believe from the evidence that the defendant assaulted Siddie Acco with a knife, which was a deadly weapon, with intent to kill.” The charge of the learned judge as a whole was a very able, clear and exhaustive embodiment of the law of the case, but we are of the opinion that the extract above quoted is erroneous; and, having direct reference to a most material issue in the case, it would be most likely to mislead the jury to the injury of the defendant’s rights. The error in the paragraph quoted is this,—it concludes with the word kill instead of the word murder. The defendant may have ■assaulted Siddie Acco with a knife — a deadly weapon,— and with intent to kill him, and yet under circumstances which would, in case the death of Acco had ensued from the assault, have reduced the homicide to manslaughter. 'There exists an intention to kill ■ in manslaughter, and therefore, notwithstanding the assault in this Case may have been made with the intent to kill, that would not necessarily make it an assault with intent to murder. The intent to kill may have existed without malice, and malice is as essential in the offense of an assault with intent to murder as it is in murder itself.

It is clear, therefore, that, although the jury might have believed from the evidence that the assault was made with a deadly weapon, and with intent to kill, they might still very properly acquit the defendant of the charge of assault with intent to murder and find her guilty of an aggravated assault, provided the evidence did not satisfy their minds, beyond a reasonable doubt, that the homicide, if accomplished, would have been murder. But the charge referred to instructs them plainly and positively to the contrary, and, while we do not doubt but that it was an accidental mistake in the *657otherwise model charge of the learned judge, we think it was a most vital one to the defendant, and one which demands a reversal of the judgment.

Reversed and remanded.