33 Tex. 517 | Tex. | 1870
The motion to quash the indictment was properly overruled. There was enough charged to show that there was an offense committed against the laws of the State, if the allegations were true; and it did not appear therefrom that the prosecution was barred by lapse of time; nor that the offense was committed after the finding of the indictment; nor did it set forth any matter which was a legal defense, or bar to the action ; some one of which incidents is necessary to constitute a valid exception to the substance of an indictment. (See Art. 2954, Paschal’s Digest.)
But this court feels fully justified in disturbing the verdict of the jury, because no evidence appears in the statement of facts, which either establishes an assault, simple or aggravated; or even an attempt to commit a battery. The actual assault was committed by the peraen upon whom the assault was charged to have been made. The proof shows that the accused came up to a company, with whom Newton Roberts was conversing, with a
There being no evidence adduced on the trial, establishing the commission of an assault by the accused, the judgment is reversed and the cause dismissed in the court below.
Reversed and dismissed.