Crow v. State , 41 Tex. 468 ( 1874 )

Gould, Associate Justice.

The indictment does not contain a complete description of two offenses, and is not duplicated. (State v. Dorsett, 21 Tex., 657.) In setting out the circumstances of aggravation attending the assault, it details some of the facts which go to constitute the offense of threatening to take life, but the essential averment that the threats were seriously made was wanting. There is no such duplicity as materially to affect the clearness and certainty of the indictment, as one for aggravated assault. (State v. Smith, 24 Tex., 286.)

We think it was proper for the court to examine, of its own motion, the sheriff and others, to ascertain the truth of the grounds alleged for a change of venue, supported only by the affidavit of the father and mother of the defendant.

In the case of Winkfield v. State, decided at the late session at Austin, we held that the judge, in the discharge of the highly responsible duty devolved on him in such cases, might institute an inquiry similar to that made in this case. The result of the inquiry was substantially to negative the truth of the ground set up, and to justify the action of the court in making the application.

There was no error in instructing the jury, that while pointing an unloaded gun at a person would not be an assault, the burden of proving it to be unloaded was on the defendant. (Caldwell v. State, 5 Tex., 20; Wharton Am. C. Law, sec. 1244.) The code does not change the rule of evidence on this point.

The question was not before the court in the case of Warren v. State, 33 Tex. 521; cited by appellant.

The charge of the court was.a fair presentation of the law ; and whilst it embraced some propositions not applicable to the case, it is not perceived that the defendant could have been prejudiced thereby.

There was no error in refusing to give the charges asked on the subject of threats in the form presented. The evifence was that defendant presented a pistol at the witness, and threatened to shoot her if she did not hush, and again threatened to blow a hole through her if she called her husband. The act of pointing a loaded pistol at a person, if unexplained or unexcused, of itself constitutes an assault. There was nothing in the language used, nor in the fact that the violence was not carried further—although it was plainly in the power of defendant to have done so—that relieves this act of its criminal character as an assault. On the contrary, the tendency of the threats to shoot unless conditions were complied with which he had no right to impose is to aggravate the offense.

We think the verdict was justified by the evidence, and the judgment is affirmed.

Affirmed.