34 Tex. 95 | Tex. | 1871
There is no brief or assignment of errors filed in this case by the Attorney General, 'who has submitted the case upon the record only, leaving an inference to be drawn from that fact that no error existed; but, upon an examination of the record, we think there is sufficient error upon the face of the record to require a reversal of the judgment of the lower court. We are of the opinion that the court erred in sustaining the defendant’s motion to quash the indictment. An indictment for an assault with an intent to murder would not necessarily be bad, though it should also charge other degrees of an assault constituted by the same act. That there are different degrees of an assault, for which a defendant may be punished under the same indictment, and for which there are different penalties, has been settled by the statute, (Paschal’s Digest, articles 2142, 2160); and we see no reason why a higher and lower degree of assault may not be charged in the same indictment, provided both degrees are charged to have been the result of one and the same act. So also may one assault be committed on one or more persons at the same time and by the same act, and under such circumstances an indictment charging an assault upon two persons would be good upon a demurrer or motion to quash. It is true that a defendant cannot be punished under one indictment for two or more distinct offenses, committed at different times; and when it becomes apparent, either from the
The other grounds for quashing the indictment, set out in defendant’s motion, could only be determined by the evidence, whether, the assault, if any, was with the intent to murder, or whether it was made' upon an officer in the lawful discharge of his duty, and therefore became an aggravated assault, or whether it was a simple assault and battery.
The court also erred in refusing to forfeit the recognizance of defendant for his appearance to answer to the district court for the offence charged in the indictment, on his failure to appear and answer to the charge, and in case of an appeal, to give a new recognizance for the appeal, in compliance with the statute. (Paschal’s Digest, article 3187.)
The district court also erred in refusing to order a capias for the defendant, on motion of the district attorney. For these errors the judgment of the district court is reversed, and' the cause remanded for trial.
Reversed and remanded.
