James v. State

36 Tex. 645

• Court: Texas Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Ogden, J.

The appellant was indicted for an assault with intent to murder, and was convicted of an aggravated assault and battery. The only question presented by the record or the briefs of counsel, which requires notice here, is as to the sufficiency of the indictment in describing the offense charged, and this question is most definitely settled in the affirmative in Wharton’s American Criminal Law, 467, and in the case of The State v. Croft, 15 Texas, 576, and also in the case of The State v. Killough, 32 Texas, 78.

And the only remaining question suggestive of a doubt, is as to the sufficiency of this indictment, which simply charges an assault with intent to murder, to support a conviction of an aggravated assault and battery, and the right of the State to prove a battery where none was charged in the indictment. The cases referred to have decided that this indictment is sufficient to charge an assault with an intent to murder, and the statute, Article 2160, settles the question that under that indictment the jury are authorized to acquit the defendant of the offense charged, and find him guilty, according to the facts of the case, of an aggravated assault, or of an assault and battery, or of a simple assault.

There is no error in the judgment of the District Court, and it is affirmed.

Affirmed.