A fоrmer appeal in this ease is reported in 19 Texas Ct. Rep., 115. The statement of the case on the former appeal may be regarded as sufficient for the disposition of this case. Exception was ,reserved to the following charge: “I further charge you that if you believe from the evidence, beyond a reasonable dоubt, that the defendant sought the meeting with the said W. H. Reese for the purpose of slaying thе said Reese or to do him such serious bodily injury as might probably end in the death of said W. H. Reеse, and having found him, did some act, or used some language, or did both, with intent to produce the occasion and bring on the difficulty, and that the same, under the same circumstanсes, was or were reasonably calculated to provoke a difficulty, and on such account the said W. H. Reese attacked him, and he then attempted to slay the said Reese or to do him such serious bodily injury as might probably end in the death of said Rеese, in pursuance of his original design then the defendant can not justify on the ground of sеlf-defense, but such attack, on defendant’s part, would be assault with intent to murder, provided if said Reese had been killed under such circumstances it would have been murder in one of the degrees; but if defendant had no such purpose in seeking the fatal meeting, or having had the meeting, did no act reasonably calculated to provoke thе difficulty, and was attacked by the said W. H. Reese, then his right of self-defense would not be forfeited, and he could stand his ground and defend himself by the use o'f such means of defense as the facts and circumstances indicated to be necessary to protect himsеlf from danger or from what reasonably appeared to him at the time to be dаnger, viewed from his standpoint.”
Contention is made that this authorizes the conviction of аppellant of assault with intent to murder in the absence of a specific intent to kill and with the further intent, on the part of appellant, to commit serious bodily injury. Without review of the facts, it may be stated, that the issue of assault to murder was made by the evidenсe on the part of the State, on the part of fhe defendant, self-defense аnd generally speaking the issue of aggravated assault. It has been well settled by an unbroken line of decisions in this State that in order to constitute the crime of assault with intent to murder, that there must be an assault coupled with the specific intent to kill, the party- bеing actuated by malice aforethought. Assault to murder can not be constituted by an аssault with any other intent than that of committing a homicide, and that attack, if consummated in a homicide, would amount to mur•;der in one of the two degrees. An assault with intent to cоmmit serious bodily injury, falls short of the specific intent to kill and under such circumstances, should а killing occur, the offense usually would
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be manslaughter. For a collation of authoritiеs in support of the above statement, see White’s Annotated Penal Code, section 1045. A charge, which authorizes a conviction for assault with intent to murder upon proof that the assault was with intent “to inflict serious bodily harm,” and not to kill, is fundamentally erroneous. See Gillespie v. State, 13 Texas Crim. App., 415; Pruitt v. State, 20 Texas Crim. App., 129; McCullough v. State, 24 Texas Crim. App., 128; Moore v. State, 26 Texas Crim. App., 322; Carter v. State, 28 Texas Crim. App., 355; Williams v. State, 30 Tеxas Crim. App., 429. It may be further stated that where the proof is inconclusive of the specific intent to murder, the charge should give the jury discretion to convict of a lower grade than of assault with intent to murder, if they should find that the evidence did not show a speсific intent to kill. Carter v. State, 28 Texas Crim. App., 355; Moore v. State,
The State reserves a bill of exceptions, which is set out in the record, to the ruling of the court excluding certain testimony offered by thе prosecution. The State has no right of appeal, but if it was necessary to pass upon the question, we would hold that the court ruled correctly in excluding the offеred evidence.
For the errors discussed the judgment is reversed and the cause remanded.
Reversed and remanded.
Henderson, Judge, absent.