State v. Hays

41 Tex. 526

Opinion

Devine, Associate Justice.

The question presented for consideration is the sufficiency of the indictment, which was set aside on defendant’s motion, the grounds of the motion being that the indictment failed to charge the assault as being unlawful, and that it did not charge that the assault was made with the intent to injure the person upon whom it was committed.

Every assault charged in an indictment is an unlawful assault, and the intent to injure will be inferred from the illegal act charged. The act imports illegality on its face; and if there were circumstances that would show it to be lawful, it rests on the defendant to show them. (State v. Allen, 30 Tex., 59; State v. Lutterloh, 22 Tex., 214.) The same point was decided at the last Austin term.

The court erred in sustaining the motion. The judgment is reversed and the cause is remanded.

Reversed and remanded.