88 S.W. 245 | Tex. Crim. App. | 1905
Conviction of assault to murder, with two years in the penitentiary fixed as the penalty. Bills of exception numbers 1 and 2 show that the court permitted the district attorney to impeach the State witness. This can not be done unless the witness has testified to something injurious to the State. The bills do not show that the witness had so testified — in fact do not show what he testified. The bills are defective in this regard. Be this as it may, this character of testimony is admissible; and we say this in view of the fact that the case must be reversed, and the question may arise upon another trial.
Appellant insists that the evidence is not sufficinet to support the verdict of the jury. We think this contention is well made. There is nothing to show that appellant ever shot at the prosecutor; and without specific intent to kill there can be no assault with intent to murder. The mere fact that the prosecutor ran and appellant shot his pistol, *347 would not show even circumstantially that he shot at prosecutor. Therefore, we believe the evidence is not sufficient. Appellant also insists that the court should have submitted the issue of aggravated assault to the jury. There is no evidence showing that prosecutor was shot at. On another trial should the evidence show that prosecutor was shot at, the court should charge on aggravated assault. If the evidence is the same as here presented, there should be a charge on simple assault, on account of the shot being fired to frighten.
The judgment is reversed and the cause remanded.
Reversed and remanded.