Ectob, P. J.
The defendant was indicted in the District Court of Smith County for the murder of one J. W. Finley. He was tried at the September term, 1877, of said District Court, and acquitted of the charge of murder, but convicted of an assault with intent to murder, and his punishment assessed at two years’ confinement in the penitentiary.
He has assigned several grounds of error, the first of which is as follows :
“ 1. The court erred, in charging the jury upon the degrees embraced in the offense of murder, in this, that the court charged the jury that if they acquitted the defendant of the three degrees of homicide—murder in the first degree, in the second degree, and manslaughter — that then they could consider whether the defendant was guilty of assault to murder; and directing the character of the finding.”
The District Court, in its charge to the jury, after correctly defining the several degrees of homicide — murder in the first degree, murder in the second degree, and manslaughter — proceeded to charge the jury as follows: “ Should you not believe beyond a reasonable doubt that the [144]*144defendant is guilty of either murder in the first or the second degree, or of manslaughter, but should you believe beyond such a reasonable doubt that he is guilty of an assault with intent to murder, you should so find, and assess his punishment at confinement in the penitentiary not less than two nor more than seven years. In this event the form of your verdict will be, substantially, ‘ We, the jury, find the defendant not guilty of murder in the first or second degree, as charged in the indictment, or of manslaughter, but we find him guilty of an assault with intent to murder the said J. W. Finley, and assess his punishment at confinement in the penitentiary for ’ ( here insert the time of punishment at confinement in the penitentiary, not less than two nor more than seven years, in your sound discretion).”
The main question to be determined in this case is, Can a defendant charged xvith murder be convicted of an assault with intent to murder?
The general rule at common law was that, when an indictment charged an offense which included within it another less offense, or one of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less. This rule was subject to the qualification that, upon an indictment for a felony, the defendant could not be convicted of a misdemeanor.
The reason upon which this qualification rested in England was that, upon a trial for a misdemeanor, he had certain advantages, such as the right to make a full defense by counsel, to have a copy of the indictment, and a special jury, when the charge was a misdemeanor — rights not allowed at common law when the charge was a felony. 1 Bishop’s Cr. Law, sec. 814; 1 Whart. Cr. Law, sec. 400; 2 Hawk. P. C., ch. 47, sec. 6; 1 Chitty’s Cr. Law, 251; 1 Chitty’s Cr. Law, 639. These were substantial privileges affecting the fairness of the trial itself.
In all these respects, in everything which pertains to the [145]*145fairness of the trial, the rights of the accused are as well protected in this country, on a trial for felony, as upon a trial for a misdemeanor, and, in some cases, better. And for this reason it has been held in New York, Vermont, New Jersey, Ohio, North Carolina, South Carolina, Arkansas, Michigan, and doubtless some of the other states, that, the English reason ceasing, the qualification of the rule itself ceased with it. Whart. Cr. Law, 400, and cases cited ; 1 Bishop’s Cr. Law, sec. 815.
Massachusetts, Virginia, Pennsylvania, and Tennessee have abolished it by statute. See Whart. Cr. Law, secs. 888, 400. And a like statute has been adopted in England, so that a person charged in England for any felony, when the crime charged includes an assault against a person, a conviction for an attempt to commit the offense charged may be had. 1 Vic., ch. 85, sec. 11.
In this state an assault with intent to murder is a felony. Our Code of Criminal Procedure provides that, •“ when a prosecution is for an offense consisting of degrees, the jury may find the defendant not guilty of the higher degree, naming it, but guilty of any degree inferior to that charged in the indictment.” Pasc. Dig., art. 3095.
“Art. 3096. The following offenses include different degrees : Murder, which includes all the lesser degrees of culpable homicide. 2. Maiming, which includes disfiguring, wounding, aggravated assaults and batteries, and simple assaults and batteries. 3. Arson, which includes every malicious burning made penal by law. 4. Burglary, which includes every species of house-breaking and of theft from a house. 5. Theft, which includes all unlawful acquisitions of personal property punishable by the Penal Code. 6. Every offense against the person which includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law. 7. Every offense includes within it an attempt to commit the offense, when [146]*146such offense is -made penal by law.” It is evident that a proper construction of the above articles of our Code of Criminal Procedure must control this case.
After a careful examination and consideration of the briefs and oral argument of counsel, and the authorities cited, we believe that an indictment for murder includes an indictment for an assault with intent to murder. To hold otherwise would be to decide that murder is not an offense against the person. If it is an offense against the person, the 6th paragraph of article 3096 says in plain and unambiguous words that it includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law.
Or, if murder is an offense at all, then, under paragraph 7 of the same article, it includes within it an attempt to commit the offense, when such offense is made penal by law.
This construction of article 3096 reconciles every paragraph in it. In the case of Wilson v. The State, 29 Texas, 240, where the defendant was indicted for murder, and there was a count in the indictment which also charged the defendant with cruel treatment to a slave, the verdict of the jury acquitted the defendant of murder and found him guilty of the cruel treatment, and assessed his punishment at a fine of $2,000. The prosecution relied upon paragraph 6 of article 3096, Paschal’s Digest, to sustain the conviction.
Donley, J.,
in delivering the opinion of the Supreme Court, says: “The verdict does not find the defendant guilty of a homicide at all, and it is clear that the judgment rendered in this case is not warranted by the paragraph of the article just cited. The paragraph 6 of the same article provides that every offense against the person includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law. If a case shall [147]*147arise in which a party has made an unlawful, felonious assault on another, inflicting a wound, and death follows the wounding, but from the evidence the jury are unable to say that the wounding caused the death, yet, if the evidence shall clearly satisfy them that the assault was made with the intent of taking life, a case may be presented authorizing the courts to punish for the assault with the intent to commit murder, upon the indictment charging the commission of the offense.
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Ectob, P. J.
The defendant was indicted in the District Court of Smith County for the murder of one J. W. Finley. He was tried at the September term, 1877, of said District Court, and acquitted of the charge of murder, but convicted of an assault with intent to murder, and his punishment assessed at two years’ confinement in the penitentiary.
He has assigned several grounds of error, the first of which is as follows :
“ 1. The court erred, in charging the jury upon the degrees embraced in the offense of murder, in this, that the court charged the jury that if they acquitted the defendant of the three degrees of homicide—murder in the first degree, in the second degree, and manslaughter — that then they could consider whether the defendant was guilty of assault to murder; and directing the character of the finding.”
The District Court, in its charge to the jury, after correctly defining the several degrees of homicide — murder in the first degree, murder in the second degree, and manslaughter — proceeded to charge the jury as follows: “ Should you not believe beyond a reasonable doubt that the [144]*144defendant is guilty of either murder in the first or the second degree, or of manslaughter, but should you believe beyond such a reasonable doubt that he is guilty of an assault with intent to murder, you should so find, and assess his punishment at confinement in the penitentiary not less than two nor more than seven years. In this event the form of your verdict will be, substantially, ‘ We, the jury, find the defendant not guilty of murder in the first or second degree, as charged in the indictment, or of manslaughter, but we find him guilty of an assault with intent to murder the said J. W. Finley, and assess his punishment at confinement in the penitentiary for ’ ( here insert the time of punishment at confinement in the penitentiary, not less than two nor more than seven years, in your sound discretion).”
The main question to be determined in this case is, Can a defendant charged xvith murder be convicted of an assault with intent to murder?
The general rule at common law was that, when an indictment charged an offense which included within it another less offense, or one of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less. This rule was subject to the qualification that, upon an indictment for a felony, the defendant could not be convicted of a misdemeanor.
The reason upon which this qualification rested in England was that, upon a trial for a misdemeanor, he had certain advantages, such as the right to make a full defense by counsel, to have a copy of the indictment, and a special jury, when the charge was a misdemeanor — rights not allowed at common law when the charge was a felony. 1 Bishop’s Cr. Law, sec. 814; 1 Whart. Cr. Law, sec. 400; 2 Hawk. P. C., ch. 47, sec. 6; 1 Chitty’s Cr. Law, 251; 1 Chitty’s Cr. Law, 639. These were substantial privileges affecting the fairness of the trial itself.
In all these respects, in everything which pertains to the [145]*145fairness of the trial, the rights of the accused are as well protected in this country, on a trial for felony, as upon a trial for a misdemeanor, and, in some cases, better. And for this reason it has been held in New York, Vermont, New Jersey, Ohio, North Carolina, South Carolina, Arkansas, Michigan, and doubtless some of the other states, that, the English reason ceasing, the qualification of the rule itself ceased with it. Whart. Cr. Law, 400, and cases cited ; 1 Bishop’s Cr. Law, sec. 815.
Massachusetts, Virginia, Pennsylvania, and Tennessee have abolished it by statute. See Whart. Cr. Law, secs. 888, 400. And a like statute has been adopted in England, so that a person charged in England for any felony, when the crime charged includes an assault against a person, a conviction for an attempt to commit the offense charged may be had. 1 Vic., ch. 85, sec. 11.
In this state an assault with intent to murder is a felony. Our Code of Criminal Procedure provides that, •“ when a prosecution is for an offense consisting of degrees, the jury may find the defendant not guilty of the higher degree, naming it, but guilty of any degree inferior to that charged in the indictment.” Pasc. Dig., art. 3095.
“Art. 3096. The following offenses include different degrees : Murder, which includes all the lesser degrees of culpable homicide. 2. Maiming, which includes disfiguring, wounding, aggravated assaults and batteries, and simple assaults and batteries. 3. Arson, which includes every malicious burning made penal by law. 4. Burglary, which includes every species of house-breaking and of theft from a house. 5. Theft, which includes all unlawful acquisitions of personal property punishable by the Penal Code. 6. Every offense against the person which includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law. 7. Every offense includes within it an attempt to commit the offense, when [146]*146such offense is -made penal by law.” It is evident that a proper construction of the above articles of our Code of Criminal Procedure must control this case.
After a careful examination and consideration of the briefs and oral argument of counsel, and the authorities cited, we believe that an indictment for murder includes an indictment for an assault with intent to murder. To hold otherwise would be to decide that murder is not an offense against the person. If it is an offense against the person, the 6th paragraph of article 3096 says in plain and unambiguous words that it includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law.
Or, if murder is an offense at all, then, under paragraph 7 of the same article, it includes within it an attempt to commit the offense, when such offense is made penal by law.
This construction of article 3096 reconciles every paragraph in it. In the case of Wilson v. The State, 29 Texas, 240, where the defendant was indicted for murder, and there was a count in the indictment which also charged the defendant with cruel treatment to a slave, the verdict of the jury acquitted the defendant of murder and found him guilty of the cruel treatment, and assessed his punishment at a fine of $2,000. The prosecution relied upon paragraph 6 of article 3096, Paschal’s Digest, to sustain the conviction.
Donley, J.,
in delivering the opinion of the Supreme Court, says: “The verdict does not find the defendant guilty of a homicide at all, and it is clear that the judgment rendered in this case is not warranted by the paragraph of the article just cited. The paragraph 6 of the same article provides that every offense against the person includes within it assaults with intent to commit said offense, when such assault is a violation of the penal law. If a case shall [147]*147arise in which a party has made an unlawful, felonious assault on another, inflicting a wound, and death follows the wounding, but from the evidence the jury are unable to say that the wounding caused the death, yet, if the evidence shall clearly satisfy them that the assault was made with the intent of taking life, a case may be presented authorizing the courts to punish for the assault with the intent to commit murder, upon the indictment charging the commission of the offense. The record, however, does not present such a case, and its discussion would be premature at this time. The jury do not find the defendant guilty of the offense alleged against him, nor do they find him guilty of an attempt to commit the offense. He is not found guilty of a felony, but of a misdemeanor.”
Defendant’s counsel says this was only the opinion of Judge Donley, and decided nothing. This court fully concurs in the opinion expressed (in the case cited) by Judge Donley that a case may be presented, under an indictment for murder, authorizing the courts to punish for an assault with intent to murder.
This brings us to the consideration of the question as to whether the allegations in the indictment are sufficiently comprehensive to charge an assault with intent to murder. The indictment in this case is a good one for murder, and for an assault with intent to murder.
Our Criminal Code provides that “whenever it appears, upon an indictment for assault with intent to murder, that the offense would have been murder had death resulted therefrom, the person committing such assault is deemed to have done the same with that intent.” Pasc. Dig., art. 2150.
In the case of Nicholas Yanez v. The State, 20 Texas, 656, the appellant was indicted for an assault with intent to kill. Our Supreme Court say: “It appears by the evidence that the assault was made voluntarily and committed [148]*148with deliberate design ; and there is the absence of any extenuating circumstances. Had it caused the death of the party assaulted, the crime would have been murder; and that is the criterion by which to determine the intent and fix the guilt of an assault to murder. Of course it must have been committed with an instrument capable of producing death, and in such manner as to evidence an intention to take life. The instrument is not described by the witnesses otherwise than as a knife; but that is an instrument capable of producing death.”
In the case at bar the injury appears to have been inflicted with deliberate design, and in a vital part, with a knife charged to be a deadly weapon, in a manner and under circumstances (as the jury doubtless concluded) well calculated to induce the belief that the accused intended to take life, and without any extenuating circumstances. We think that the charge of the court upon the offense of an assault with intent to murder was sufficiently specific. Taking the charge as a whole, it was a clear and able exposition of the law applicable to the case, and was not calculated to mislead the jury. The verdict of the jury was fully authorized the evidence.
We do not agree with the defendant’s counsel that the finding of the jury was contradictory. The jury were, doubtless, unable to say from the evidence that the wounds inflicted by the defendant on the deceased caused his death, but were clearly satisfied that the defendant assaulted Finley with the intent to murder him. Nor do we concur in the position taken by the defense, that a person cannot be guilty of an assault with intent to murder unless it be shown that the murder he intended to commit was murder in the first degree.
If the defendant was surprised by the charge of the court, we cannot relieve him. He was called upon by the indictment to meet every offense included in it. If the interpre[149]*149tation given to the sti tute, both by the District Court and this court, is “an interpretation against public policy,” the legislative department of the government is the one to go to to have the evil corrected. It is not the province oí this court to determine whether a law is politic or impolitic.
The defendant has had a fair and impartial trial, and been ably defended both in the District Court and in this court; and we find no error that requires a reversal of the judgment.
The judgment of the District Court is affirmed.
Affirmed.