38 S.W. 167 | Tex. Crim. App. | 1896
Appellant was convicted of an assault with intent to murder, and his punishment assessed at two years in the penitiary, hence this appeal. While it is true that the court instructed the jury, "If you believe, from the evidence, beyond a reasonable doubt, that the defendant, with a deadly weapon or instrument, calculated or likely to produce death or serious bodily injury from the manner in which it was used, and with malice aforethought, did assault the said Jack Harwick, with the specific intent then and there to kill and murder him, then find the defendant guilty of an assault with intent to murder" — still this does not relieve the court of the necessity of submitting to the jury aggravated assault and battery. The appellant may have used a deadly weapon in committing the assault, and inflicted serious bodily injury upon the party assaulted, and still not intend to kill him. The intention to kill, on the other hand, can be inferred or established, notwithstanding the weapon used is not a deadly weapon. The surrounding circumstances may fix this intention. In the case before us, the testimony is not absolutely conclusive of the intent. It does not establish the fact, beyond all question, that appellant intended to kill the deceased. If the assault had been made with a gun, within shooting range, being a deadly weapon, the intent to kill would have been overwhelmingly established. If it had been made with a bowie knife, and in a deadly manner, then this intent would have been so clearly established as to supercede the necessity of submitting aggravated assault and battery. But this case is one in which a breast yoke and a rock were used. The rock may have been a deadly weapon. The injuries inflicted by the breast yoke seem to have been very slight. Those inflicted by the rock were serious, but nothing is shown to prevent appellant from repeating the blows with the rock. He could have killed the prosecutor with the rock, but he struck him only one blow, and threw the rock down, and left. Now, here was a question of fact, to be decided by the jury — was the blow inflicted with the specific intent to kill, or was it inflicted without such intent? The charge of the court failed to submit aggravated assault and battery to the jury. There was nothing left for the jury but conviction of an assault to murder, or an acquittal. This was an outrageous, unprovoked assault, and the jury would not be disposed to entirely acquit the defendant; whereas, if aggravated assault and battery had been submitted to them, they might have taken that view of the case. Such a charge was requested by the appellant, and refused by the court. We think the refusal of the court to give this charge was error. See, Pefferling v. State,
Reversed and Remanded. *574