Vann v. State

64 S.W. 243, 43 Tex. Crim. 244, 1901 Tex. Crim. App. LEXIS 120

• Court: Court of Criminal Appeals of Texas
• Decided: April 25, 1901
• Docket: No. 2215.
• Status: Published

Opinions

BROOKS, Judge.

Appellant was convicted of an aggravated assault and fined $35.

Appellant made a motion to quash the information. The charging part thereof is as follows: “That * * * one John Vann did then and there unlawfully and willfully in and upon J. W. Rutledge, with a gun, the same then and there being a deadly weapon, did then and there commit an aggravated assault,” etc.; the objection to the information being that same fails to state how said gun was a deadly weapon, or how used, and the same fails to state that said gun was discharged. The information is in proper form, and is not subject to the criticism urged by appellant.

Appellant complains that the court erred in failing to give the following charge requested by him: “If you believe from the evidence that defendant was in possession of the land on which complainant, Rutledge, was attempting to cut the timber, then defendant would have the right, in law, to prevent an unlawful intrusion on his property, and the use of any violence to prevent such would not be an assault.”

We do not think the court erred in refusing to give this charge, since there is no evidence in the record authorizing the same. What we have said in reference to special charge number 1, disposes of special charges numbers 3 and 3 requested by appellant.

Appellant urges various objections to the charge of the court, and insists that the court erred in refusing to give other special charges. Without reviewing them seriatim, we deem it only necessary to say that the charge of the court is correct, and the special charges asked by appellant, so far as applicable, were given in the main charge of the court. However, we note that appellant strenuously insists that the following portion of the court’s charge is erroneous: “If you find from the evidence that * * * John Vann pointed a gun at John Rutledge, and if you further find that said Vann pointed said gun at said Rutledge with the intention to injure or alarm said Rutledge, and if you further find that the said gun was a deadly weapon, then you will find defendant guilty as charged in the information, and fix his punishment as above defined for aggravated assault.” The charge quoted is the law, and the court did not err in giving the same. The question involved in this matter was passed upon by us in Tollett v. State, 55 Southwestern Reporter, 335. We do not think the court erred as stated in giving this charge. Ho error appearing in the record, the judgment is affirmed.

Affirmed.