Fondren v. State , 1884 Tex. Crim. App. LEXIS 64 ( 1884 )

Willson, Judge.

We are of the opinion that the evidence does not sustain the conviction. Miller was advancing toward defendant, armed with, an open knife, when defendant was told of it, and instantly turned and pointed his gun at him, telling him if he did not put up his knife he would shoot him. Miller put up his knife and the defendant put down his gun. At the time these acts occurred defendant and another person, who was present, were angry at each other, and had just before been engaged in fighting each other, and defendant had gone off and got his gun and returned, with the avowed purpose of protecting his property from being taken by the person with whom he had been fighting. He had had no difficulty with Miller, and there is no evidence that he had any ill feeling or malice toward him. While defendant was in an excited state of mind from his difficulty with the other party, and had his attention directed to that party, he was informed that Miller, who was in his rear, was armed with a knife, and, looking around, he discovered that such was the fact, and that Miller was advancing upon him. With a foe in front and another in the rear, as he doubtless supposed, he very naturally made the necessary preparations to defend himself. He made no attempt to shoot Miller or any one else, but merely stood upon the defensive. It does not appear that his intention was to injure Miller or any one else, unless he was forced to do so in defense of his person or his property. On the contrary, it is shown that when he saw he was no longer in danger he put down his gun and made no further hostile demonstration.

In every assault there must be an intention to injure, coupled with an act which must at least be the beginning- of the attempt to injure at once, and not a mere act of preparation for some contemplated injury that may afterwards be inflicted. (Clark’s Crim. Law, p. 159, note 70.)

We think the evidence in this case fails to show any act committed by the defendant which, in law, would constitute an assault upon Miller; and because the verdict is not warranted by the proof, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered April 23, 1884.