Howard v. State

Court of Appeals of Texas

Howard v. State

18 Tex. Ct. App. 348, 1885 Tex. Crim. App. LEXIS 108

DecidedJune 3, 1885

StatusPublished

This text of 18 Tex. Ct. App. 348 (Howard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howard v. State, 18 Tex. Ct. App. 348, 1885 Tex. Crim. App. LEXIS 108 (Tex. Ct. App. 1885).

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Opinion

White, Presiding Judge.

This is an appeal from a judgment of conviction in the court below for an assault with intent to murder. Our statute provides that, “ if any person shall assault another with intent to murder, he shall be }iunished by confinement in the penitentiary not less than two nor more than seven years.” (Penal Code, art. 500.)

In his charge to the jury in this case the learned judge told the jury that, if they found defendant guilty of an assault with intent to murder, they should “assess his punishment at confinement in the penitentiary at any time not less two years and not more than five years.” Inasmuch as the statute expressly requires that the charge “ shall distinctly set forth the law applicable to the case ” (Code Crim. Proc., art. 677), it has been held time and again that, if the charge is incorrect as to the penalty, though in favor of the prisoner, the conviction cannot stand, whether the charge was excepted to or not. (Turner v. The State, 17 Texas Ct. App., 587; Wilson v. The State, 14 Texas Ct. App., 524; Clark’s Crim. Law of Texas, p. 517, and note.)

In the indictment it was alleged that the assault was committed with a knife, a deadly weapon. A knife is not per se a deadly weapon, and when an indictment specifies a weapon which, according to its use, may or may not be a deadly weapon, the jury should be instructed as to the meaning of the phrase “deadly weapon,” in its application to the case made by the evidence. (Kouns v. The State, 3 Texas Ct. App., 13; Skidmore v. The State, 43 Texas, 93.) The charge before us fails to so instruct the jury.

Again, the rule is settled that it is error to instruct the jury that they must convict if they find facts are established which are recited in the charge, when other facts in evidence are not referred to in the instructions which, if true, might mitigate the offense or excuse the act cha ged. (McFarlin v. The State, 41 Texas, 23.) We are of opinion that the charge trenches upon, if it does not directly impinge' j[lis rule by reciting the facts mainly as testified to by the [352]*352witness Jones, without reference to material variances from that testimony as stated in evidence by the witness ATcAlIister.

The bills of exception reserved to the overruling of the application for continuance, and to remarks made by the judge in overruling the motion for a new trial, will not be discussed, as those questions cannot arise on another trial.

For errors in the charge of the court as above pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 3, 1885.]

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White, Presiding Judge.

This is an appeal from a judgment of conviction in the court below for an assault with intent to murder. Our statute provides that, “ if any person shall assault another with intent to murder, he shall be }iunished by confinement in the penitentiary not less than two nor more than seven years.” (Penal Code, art. 500.)

In his charge to the jury in this case the learned judge told the jury that, if they found defendant guilty of an assault with intent to murder, they should “assess his punishment at confinement in the penitentiary at any time not less two years and not more than five years.” Inasmuch as the statute expressly requires that the charge “ shall distinctly set forth the law applicable to the case ” (Code Crim. Proc., art. 677), it has been held time and again that, if the charge is incorrect as to the penalty, though in favor of the prisoner, the conviction cannot stand, whether the charge was excepted to or not. (Turner v. The State, 17 Texas Ct. App., 587; Wilson v. The State, 14 Texas Ct. App., 524; Clark’s Crim. Law of Texas, p. 517, and note.)

In the indictment it was alleged that the assault was committed with a knife, a deadly weapon. A knife is not per se a deadly weapon, and when an indictment specifies a weapon which, according to its use, may or may not be a deadly weapon, the jury should be instructed as to the meaning of the phrase “deadly weapon,” in its application to the case made by the evidence. (Kouns v. The State, 3 Texas Ct. App., 13; Skidmore v. The State, 43 Texas, 93.) The charge before us fails to so instruct the jury.

Again, the rule is settled that it is error to instruct the jury that they must convict if they find facts are established which are recited in the charge, when other facts in evidence are not referred to in the instructions which, if true, might mitigate the offense or excuse the act cha ged. (McFarlin v. The State, 41 Texas, 23.) We are of opinion that the charge trenches upon, if it does not directly impinge' j[lis rule by reciting the facts mainly as testified to by the [352]*352witness Jones, without reference to material variances from that testimony as stated in evidence by the witness ATcAlIister.

The bills of exception reserved to the overruling of the application for continuance, and to remarks made by the judge in overruling the motion for a new trial, will not be discussed, as those questions cannot arise on another trial.

For errors in the charge of the court as above pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 3, 1885.]

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18 Tex. Ct. App. 348, 1885 Tex. Crim. App. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-state-texapp-1885.

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