Montalvo v. State

31 Tex. 63

• Court: Texas Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

Lindsay, J.

— The appellant was indicted, tried, and convicted for an assault with intent to kill. The statement of facts is exceedingly meagre; and if all the facts proved upon the trial are embraced in the statement, it is difficult to perceive from what circumstances stated the jury could come to the conclusion that the assault was made with intent to Mil. If there be any fact in the evidence which is brought before us for revision from which a jury may reasonably draw the inference of the guilty intent charged, this court is never disposed to disturb the verdict of a jury. But if a case be wholly barren of every such fact, it is our duty to set aside all such findings. There is not a single circumstance developed by the testimony in this case to show that it was the intent of the accused to Mil in the assault which he made. The evidence might have warranted a verdict of “ not guilty” of the assault with intent to Mil, but “guilty” of an aggravated assault. Beyond this, upon the evidence, the jury had no right to go. The judgment is reversed, and a new trial awarded.

Reversed and remanded.