Price v. State

Oct 27, 1886
No. 2155
Reporters:
, ,
Before:
White
White, Presiding Judge.

An indictment for assault with intent to murder need not set forth the means used nor the manner in which ‍​‌​‌​​​‌‌‌​‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌‌​​​‌‌​​​‌​‌​​​​​‌‌‌‌​‍the means were used to effectuate the murderous intention. (Browning v. The State, 2 Texas Ct. App., 47; Nash v. The State, Id., 362; Hines v. The State, 3 Texas Ct. App., 483; Davis v. The State, 20 Texas Ct. App., 301.) In this ‍​‌​‌​​​‌‌‌​‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌‌​​​‌‌​​​‌​‌​​​​​‌‌‌‌​‍case the indictment was sufficient (See Willson’s Cr. Forms, No. 357), and the court did not err in overruling defendant’s motion to quash.

Defendant’s application for continuance disclosed sufficient diligence certainly as to one if not two of the witnesses for whom it was ‍​‌​‌​​​‌‌‌​‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌‌​​​‌‌​​​‌​‌​​​​​‌‌‌‌​‍sought. But if we concede that it was a matter entirely discretionary with the trial court to overrule it in the first instance, yet we are of opinion that, when the evidence adduced at the trial made it apparent that the absent ‍​‌​‌​​​‌‌‌​‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌‌​​​‌‌​​​‌​‌​​​​​‌‌‌‌​‍testimony was not only probably true, but very material to the interests of the defendant, it should have availed on the motion for a new trial, and the same should have been granted.

Other matters complained of may not occur on another trial. ‍​‌​‌​​​‌‌‌​‌‌​‌‌‌​‌​​​​‌​‌‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌‌​​​‌‌​​​‌​‌​​​​​‌‌‌‌​‍Because the court erred in overruling defendant’s motion for a new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.