Moore v. State , 26 Tex. Ct. App. 322 ( 1888 )

White, Presiding Judge.

Under an indictment for murder, appellants have been jointly tried and convicted of assault with intent to murder, the punishment of each being assessed at two years in the penitentiary.

Opinion delivered October 31, 1888.

“In order to constitute the offense of assault with intent to murder, two things must concur, first, an assault, and, second, a specific intent to kill. Without a simultaneous concurrence of these two constituent elements there can be no assault to murder. Ho intent save the specific one to kill will be sufficient.” (Willson’s Crim. Stats., sec. 857; McCullough v. The State, 24 Texas Ct. App., 128.)

In this case the charge of the court instructed the jury: “If, therefore, you find from the evidence that the defendants, or either of them, fired upon the deceased with a deadly weapon, with the intent to kill or do Mm such serious bodily injury asvoould probably end in death,- and that if they or either of them, had killed the deceased, such killing would have been murder, as murder and malice is hereinbefore defined,” then where-death did not ensue, they would be guilty of assault with intent to murder. Ho correction of this error is found in any other-portion of the charge.

It was also a question of fact in this case, to be ascertained by the jury, as to the existence or non existence of such adequate cause as would reduce the killing from murder to manslaughter. If defendants, seeing their friend shot down, were-so aroused by sudden rage or resentment as that their minds were incapable of cool reflection, and, acting under the immediate influence of such sudden passion, they shot and killed the-deceased, their offense would have been manslaughter, and not. murder. A charge to this effect was asked in behalf of defendants, and a bill of exceptions was reserved to the refusal of the-court to give it.

For the errors in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.