Lay v. State , 54 Tex. Crim. 64 ( 1908 )

BROOKS, Judge.

Appellant was convicted of assault with intent to murder, and his punishment assessed at two years confinement in the penitentiary.

The charge of the court presents the issues of assault to murder, aggravated assault, and self-defense. On the issue of aggravated assault the court submitted three theories: First, passion producing adequate cause; second, serious bodily injury inflicted, and third, assault with a deadly weapon. Counsel in his criticism of the charge on aggravated assault insists that- the court should have told the jury that the assault must be made with premeditation and unlawful intent to injure. We do not believe "this was required. If the assault was with unlawful intent to injure, it certainly was premeditated. The charge is a proper presentation of all the law of aggravated assault applicable to the facts of this case. The injured party was working at his blacksmith shop grinding an axe without suspecting any harm from appellant. According to the State’s testimony the defendant walked up, taking a large single-tree, and knocked him down, leaving him in an unconscious condition for a long while. The defendant’s testimony, however, attempting to contravene this on cross-examination, practically shows the same facts.

We think the evidence amply supports the verdict, and finding no error in the record, the judgment is in all things affirmed.

Affirmed.