State v. Croft

15 Tex. 575

Opinion

Wheeler, J.

In an indictment for an assault w|th intent to commit an offence, the same particularity is not! required as in an indictment for the commission of the offence, j (Whart. Am. Cr. L. 467, 2nd edit.) Thus : “ In an indictment with 11 intent to murder, it is not necessary to state the instrument, “ or means made use of by the assailant, to effectuate the mur- “ derous intent. The means of effecting the criminal intent, “ or the circumstances evincive of the design with which the “ act was done, are considered to be matters of evidence to the “ Jury, to demonstrate the intent, and not necessary to be in- “ corporated in the indictment.” (Ib.)

In the case of the State v. Johnson (11 Tex. R. 22,) the averment of the felonious intent was wanting. Mot áo in the present case. The intent is distinctly averred. We are of opinion that the indictment is sufficient; and that the Court erred in sustaining the motion to quash it: for which the judgment must be reversed and the cause remanded for further proceedings. j

Reversed and reminded.