State v. Franklin , 36 Tex. 155 ( 1872 )

Walker, J.

Oases quite too frequently are brought before us where the facts show the accused to be guilty of a most deadly and cowardly assault, by drawing a heavy pistol and using it as a bludgeon, but no doubt with the intention of using it as a firearm in case of resistance.

This case brings with it the additional aggravation that two, instead of one, cowardly ruffians engaged in the assault, and they are charged with a commission of the assault upon the body of one J. C. McDonald with certain pistols,—“ said pis- “ tols being then and there deadly weapons, which they, the “ said Franklin and McVay, in their right hands then and there “ had and held, unlawfully and willfully did make an aggravated “ assault, and they, the said Franldin and MeVay, him the said “ J. C. McDonald, with the pistols aforesaid, did then and there “ heat, bruise, and wound, then and there, and thereby inflicting “ upon the said McDonald divers serious bodily injuries, against “ the peace and dignity of the State.”

This indictment was excepted to:

First. Because it alleges the assault to have been committed with a deadly weapon, and does not negative the fact that it was done under circumstances not amounting to an intention to murder or maim.

If this be true, -which it undoubtedly is, then the indictment is good ; for what is not alleged in an indictment is not to be inferred; and it evidently not being the intention of the grand jury to charge the defendants with an assault with intent to murder or maim, but only with an aggravated assault, it was certainly unnecessary to charge the defendants with what they did not do—the law only intending to punish them for what they did do.

The second exception is, if possible, more frivolous than the first, unless it can be shown that a pistol used as a bludgeon, whether loaded or not with powder and ball, cannot be regarded as a deadly weapon, and made the instrument of an aggravated assault.

The third exception is a kind of omnivagus, striking high and low and affecting nothing.

The indictment is good, and should have been so held by the District Court.

The judgment is reversed, and the cause remanded.

Reversed and remanded.