White, Presiding Judge.
At a former day of the present term we affirmed the judgment in this case without a written opinion. Distinguished counsel, representing appellant, have filed a motion for rehearing, and in addition to the able printed brief originally filed we have been favored and profoundly impressed with the oral argument submitted upon the issue [401]*401presented in the motion. We are free to confess that the positions assumed in the argument are most plausible and persuasive, and, had we been upon the trial jury trying the case, it may be that under the facts we might have arrived at a different conclusion as to the grade and nature of the crime and the punishment to be awarded. We must, however, take the record as here presented, and if upon the record it appears that no material error has been committed in the trial below, and if the evidence, applied to the law, warrants and sustains the verdict and judgment, then, whatever might be our private opinion, feeling or sympathy, our duty is plain and the judgment must be affirmed.
Appellant was indicted for and has been tried and convicted of assault with intent to murder one Isaac Grubbs. We take the following statement of the material facts, which we have verified and found correct, from the printed brief of appellant’s counsel:
Isaac Grubbs testified in substance that on the thirteenth day of July, 1887, while he was at the pasture gate, defendant rode up and hallooed “hello” twice; that he (Grubbs) said, “how do you do.” That defendant said “do you want settle that?” That he asked him what ? That defendant referred to a matter that had occurred at the school house. That he told him to go away and let him alone; that he wanted no trouble with him. That defendant accused Henry Easterling of putting him up to attacking defendant at the school house. That he denied- it. That defendant said, “you lie, you son of a bitch.” That he told defendant not to ride over him. Defendant said he did not want to, that he wanted to fix him, etc.; that defendant threw out his left hand at him—could not tell whether defendant’s hand was closed or open,—that he caught the defendant’s shirt sleeve and tore it off. Defendant then said, “I’ll do you up.’’ Defendant pulled out his knife, opened it and got down, and they went to fighting; can’t say which struck the first blow; that during the fight defendant cut him in four places with his pocket knife (describes the wounds); that he and defendant quit fighting of their own accord; defendant said to him, “now you can go home;” they both went on in the same direction. As they went out of the gate, defendant said to him, “you know you struck me first and called me a son of a bitch;” that he had no knife and is positive he did not call defendant either a son of a bitch or liar.
[402]*402Dr. Mills, for the State, described the locality and character of the wounds, and in addition stated, “I did not consider that the wounds as made were at all likely to produce death, or were dangerous.” Lee Grubbs testified substantially as his brother. William Taylor, deputy sheriff, testified for the State that he went to Lamar county and got defendant, and brought him to Bell county about six months ago.
Daniel Elliott, for defendant, testified substantially that he went to and returned from Temple with defendant and his brother; defendant was riding a wild horse of witness’s. As they returned in the evening, defendant’s horse scared at a little bridge; defendant hit his horse with his quirt; the horse jumped the bridge and ran with defendant down to where the prosecuting witness, Grubbs, was at the gate; that he, witness, rode on after him slowly; heard Isaac Grubbs say to defendant, “you lie, you son of a bitch,” and saw him strike defendant, or strike at him; defendant then said, “you called me a son of a bitch, and you have got to take it back;” Grubbs denied calling defendant a son of a bitch; defendant then got off his horse and they both went to fighting one another; Grubbs struck defendant first while he was on his horse; they quit fighting of their own accord; he told defendant after they had stopped that he had done enough; saw all the fight and was not related to either party.
Mrs. Wood, defendant’s mother, testified that defendant was nineteen years old the seventeenth of October, 1888; was .married on the tenth of October; his knife was a two bit one bladed red handled pocket knife, blade one to one and a half inches long.
A notable and indeed the important fact relied upon by appellant to show that his offense can not be assault with intent to murder is that, after inflicting the blows given, he of-his own accord stopped voluntarily and abandoned the further prosecution of the fight. Learned counsel say in their argument “now we submit that "if (as is universally admitted to be true) the most convincing test of the intent of a party in a difficulty is what he does, then, tested by this rule, the mere fact that the defendant voluntarily, and without any interference or persuasion on the part of any one, ceased to fight Grubbs before he had inflicted upon him any serious bodily injury, when, as charged, he had in his hand a deadly weapon and had every opportunity to take his life is proof convincive that he [403]*403had no such intention, and the conviction in this case is a shock to that sense of ‘even handed justice’ which should always control juries in their deliberations.”
There is no better settled rule of law than that, in assault with intent to murder, there must be a specific intent to murder. This intent is the essential ingredient of the offense, and its existence must be proven to the satisfaction of the jury. (Willson’s Crim. Stats., secs. 857, 858, 859, and authorities collated; McCullough v. The State, 24 Texas Ct. App., 128; Moore et al. v. The State, 26 Texas Ct. App., 322.)
Article 502, Penal Code, provides, as a test on the trial of one charged with this crime, that “whenever it appears upon a trial for an 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.” In Yanez v. The State, 20 Texas, it is held that “if the assault is voluntary, committed with deliberate design, ■and with an instrument capable of producing death in such manner as evidences, an intention to take the life, and there are no extenuating circumstances, it is an assault with intent to murder.”
In article 50 of our Penal Code it is provided that the “intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.” It is also an elementary rule, and one of "universal application, that “a man is always presumed to intend that which is the necessary or even probable consequence of his acts, unless the contrary appears.” (McCoy v. The State, 25 Texas, 42; Aiken v. The State, 10 Texas Ct. App., 610; High v. The State, 26 Texas Ct. App., 546.)
Mr. Bishop says: “If a man undertakes to do a particular wrong of the indictable sort, and does some act towards it but fails to complete what he meant, his evil intent and act together constitute * * a common law crime, provided the act is not too trivial and small for the law’s notice. For the intent is sufficient, and the adequacy of the act is the only further object of inquiry.
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White, Presiding Judge.
At a former day of the present term we affirmed the judgment in this case without a written opinion. Distinguished counsel, representing appellant, have filed a motion for rehearing, and in addition to the able printed brief originally filed we have been favored and profoundly impressed with the oral argument submitted upon the issue [401]*401presented in the motion. We are free to confess that the positions assumed in the argument are most plausible and persuasive, and, had we been upon the trial jury trying the case, it may be that under the facts we might have arrived at a different conclusion as to the grade and nature of the crime and the punishment to be awarded. We must, however, take the record as here presented, and if upon the record it appears that no material error has been committed in the trial below, and if the evidence, applied to the law, warrants and sustains the verdict and judgment, then, whatever might be our private opinion, feeling or sympathy, our duty is plain and the judgment must be affirmed.
Appellant was indicted for and has been tried and convicted of assault with intent to murder one Isaac Grubbs. We take the following statement of the material facts, which we have verified and found correct, from the printed brief of appellant’s counsel:
Isaac Grubbs testified in substance that on the thirteenth day of July, 1887, while he was at the pasture gate, defendant rode up and hallooed “hello” twice; that he (Grubbs) said, “how do you do.” That defendant said “do you want settle that?” That he asked him what ? That defendant referred to a matter that had occurred at the school house. That he told him to go away and let him alone; that he wanted no trouble with him. That defendant accused Henry Easterling of putting him up to attacking defendant at the school house. That he denied- it. That defendant said, “you lie, you son of a bitch.” That he told defendant not to ride over him. Defendant said he did not want to, that he wanted to fix him, etc.; that defendant threw out his left hand at him—could not tell whether defendant’s hand was closed or open,—that he caught the defendant’s shirt sleeve and tore it off. Defendant then said, “I’ll do you up.’’ Defendant pulled out his knife, opened it and got down, and they went to fighting; can’t say which struck the first blow; that during the fight defendant cut him in four places with his pocket knife (describes the wounds); that he and defendant quit fighting of their own accord; defendant said to him, “now you can go home;” they both went on in the same direction. As they went out of the gate, defendant said to him, “you know you struck me first and called me a son of a bitch;” that he had no knife and is positive he did not call defendant either a son of a bitch or liar.
[402]*402Dr. Mills, for the State, described the locality and character of the wounds, and in addition stated, “I did not consider that the wounds as made were at all likely to produce death, or were dangerous.” Lee Grubbs testified substantially as his brother. William Taylor, deputy sheriff, testified for the State that he went to Lamar county and got defendant, and brought him to Bell county about six months ago.
Daniel Elliott, for defendant, testified substantially that he went to and returned from Temple with defendant and his brother; defendant was riding a wild horse of witness’s. As they returned in the evening, defendant’s horse scared at a little bridge; defendant hit his horse with his quirt; the horse jumped the bridge and ran with defendant down to where the prosecuting witness, Grubbs, was at the gate; that he, witness, rode on after him slowly; heard Isaac Grubbs say to defendant, “you lie, you son of a bitch,” and saw him strike defendant, or strike at him; defendant then said, “you called me a son of a bitch, and you have got to take it back;” Grubbs denied calling defendant a son of a bitch; defendant then got off his horse and they both went to fighting one another; Grubbs struck defendant first while he was on his horse; they quit fighting of their own accord; he told defendant after they had stopped that he had done enough; saw all the fight and was not related to either party.
Mrs. Wood, defendant’s mother, testified that defendant was nineteen years old the seventeenth of October, 1888; was .married on the tenth of October; his knife was a two bit one bladed red handled pocket knife, blade one to one and a half inches long.
A notable and indeed the important fact relied upon by appellant to show that his offense can not be assault with intent to murder is that, after inflicting the blows given, he of-his own accord stopped voluntarily and abandoned the further prosecution of the fight. Learned counsel say in their argument “now we submit that "if (as is universally admitted to be true) the most convincing test of the intent of a party in a difficulty is what he does, then, tested by this rule, the mere fact that the defendant voluntarily, and without any interference or persuasion on the part of any one, ceased to fight Grubbs before he had inflicted upon him any serious bodily injury, when, as charged, he had in his hand a deadly weapon and had every opportunity to take his life is proof convincive that he [403]*403had no such intention, and the conviction in this case is a shock to that sense of ‘even handed justice’ which should always control juries in their deliberations.”
There is no better settled rule of law than that, in assault with intent to murder, there must be a specific intent to murder. This intent is the essential ingredient of the offense, and its existence must be proven to the satisfaction of the jury. (Willson’s Crim. Stats., secs. 857, 858, 859, and authorities collated; McCullough v. The State, 24 Texas Ct. App., 128; Moore et al. v. The State, 26 Texas Ct. App., 322.)
Article 502, Penal Code, provides, as a test on the trial of one charged with this crime, that “whenever it appears upon a trial for an 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.” In Yanez v. The State, 20 Texas, it is held that “if the assault is voluntary, committed with deliberate design, ■and with an instrument capable of producing death in such manner as evidences, an intention to take the life, and there are no extenuating circumstances, it is an assault with intent to murder.”
In article 50 of our Penal Code it is provided that the “intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.” It is also an elementary rule, and one of "universal application, that “a man is always presumed to intend that which is the necessary or even probable consequence of his acts, unless the contrary appears.” (McCoy v. The State, 25 Texas, 42; Aiken v. The State, 10 Texas Ct. App., 610; High v. The State, 26 Texas Ct. App., 546.)
Mr. Bishop says: “If a man undertakes to do a particular wrong of the indictable sort, and does some act towards it but fails to complete what he meant, his evil intent and act together constitute * * a common law crime, provided the act is not too trivial and small for the law’s notice. For the intent is sufficient, and the adequacy of the act is the only further object of inquiry. Therefore an attempt is an intent to do a particular thing which the law, common or statutory, has declared to be a crime, coupled with an act toward the doing sufficient both in magnitude and proximity to the fact intended to be taken cognizance of by the law, that does not concern itself with things trivial and small. Or, more briefly, .an attempt is an [404]*404intent to do a particular criminal thing, with an act toward it falling short of the thing intended.” (1 Bish. Crim. L., 7 ed., secs. 727, 728.) Further on the same learned author says: “On an indictment for a technical attempt the jury may take into view the nature of an act proved, to determine the intent which prompted it.” (Id., sec. 735.)
As was said by Campbell, J., in The People v. Scott, 6 Mich., 287: “The intent to kill must be established as an inference of fact, to the satisfaction of the jury; but they may draw that inference, as they.draw all other inferences, from any fact in evidence which to their minds fairly proves its existence. Intentions can only be proved by acts, as juries can not look into the breasts of criminals.” (Trevinio v. The State, ante, 372.) The case of Jeff (a slave) v. The State, 39 Mississippi, 593, was where the accused had inflicted several wounds with a, knife, a deadly weapon, but who, when the injured party released his hold of him, ran off without attempting further violence. The opinion is a most able and elaborate one, in which leading authorities, English and American, are reviewed' and the conclusions of the court, as stated in the syllabus, are that, “the law presumes that a party intends to do not only what he actually accomplishes, but also the natural and even probable consequences of his own acts when deliberately done; and hence, in considering technical attempts, the jury may take into consideration the nature of the act done and the attendant circumstances as matter of evidence to determine the particular intent with which it was performed; they may infer the specific intent to do a particular thing which is the necessary, natural or even probable consequence of the act proven to have been done. It is a probable consequence of the use of a deadly weapon in an assault and battery committed by one person on another that the death of the party assaulted may ensue; and hence proof of such use is prima facie evidence of an intent to kill, which must prevail unless overcome by other proof in the cause.
If a party intending to commit murder uses a deadly weapon in such a manner as that his intent is apparent, or may be fairly inferred from the act, he can not, by abandoning any further attempt at violence, lessen the effect of his previous acts and intentions, because they have already become accomplished facts. His crime has already been committed; he can not abandon what he has already done. It is for the jury to [405]*405determine, under appropriate instructions from the court upon the law, as to whether by what he did before he abandoned the further execution and accomplishment of his plans, he really, and in fact intended, to commit murder. If they so find, and the facts are of a character to justify the finding, then this court can not interfere with the finding.
Opinion delivered March 20, 1889.
In the case in hand, the jury might have inferred, as they did, from the facts proven, that appellant, up to the time he stopped using his knife, intended to kill Grubbs. We can not say that such a finding is either against or is not warranted by the facts proven. There is no question made as to the sufficiency of the charge of the court in its presentation of the law applicable to the various phases of the case, and all the special requested instructions asked by able counsel in behalf of appellant were given. If there has been any error of omission or commission in the charge of the court, we have failed to find it.
We have given this case our most mature consideration, and we are constrained to say that, as it is presented to us in the record, we do not feel that we would be warranted or authorized to interfere with the verdict and judgment. The motion for rehearing is, therefore, overruled.
Motion overruled.