130 S.W. 1002 | Tex. Crim. App. | 1910
Appellant was indicted in the court below for assault with intent to murder. His trial resulted in a conviction for aggravated assault with a penalty of a fine of $250 and six months' imprisonment in the county jail.
The testimony developed that on the 25th day of December, 1908, in Blanco County, Texas, at a dance at Bruemer hall there was a difficulty between Richard Stahl, the appellant in this case, and one Galbreath. The prosecuting witness testified that he went out of the hall to the bar to get a glass of beer; that the appellant and Galbreath came into the bar and Galbreath began to push the prosecutor; that the prosecutor pushed him back or away from him and he came up again when the prosecutor struck him; that the appellant then rushed into the melee, the prosecutor knocked Galbreath down and appellant, running up at him, made a quick strike and cut him on the face; that the appellant and prosecutor then clenched and in the scuffle around the prosecutor was again cut, and this time his throat was cut and his clothing was cut at several different places, when the parties were separated. The witness further testified that before he ever struck, appellant cut him. The cut on the prosecutor's throat was about five inches long; the prosecutor bled a great deal and fainted from the loss of blood.
The court submitted the case to the jury on assault to murder, aggravated assault, simple assault and self-defense. It is insisted in this case that the court was in error in submitting aggravated assault to the jury because no grounds of aggravation were set out in the bill of indictment. This is no longer an open question in this State. It is not necessary to allege either the manner in which, or the means with which the assault was committed. It has been held repeatedly that a conviction for an aggravated assault may be had under an indictment charging, in the usual form, an assault with intent to murder. See Biddick v. State,
Finding no error of such a prejudicial character as would authorize a reversal, the judgment is affirmed.
Affirmed.
[Rehearing denied October 12, 1910. Reporter.]