Moore v. State , 33 Tex. Crim. 306 ( 1894 )

DAVIDSON, Judge.

Tbe defendant requested the court to instruct the jury as follows: “You are further instructed, that defendant is charged with an assault with an intent to murder Bent Clark, and his defense is that he did not intend to kill the said Bent Clark, but shot to scare him. Now, if you believe from the evidence that defendant did shoot at Bent Clark, but have a reasonable doubt whether he shot to scare him or to kill him, you will acquit the defendant. The State must prove to your satisfaction, beyond a reasonable doubt, that the defendant shot at him with the intention of killing the said Bent Clark. No other intention is sufficient.” This was refused, because given in the main charge, and the refusal was duly excepted to and a bill of exceptions reserved. The charge as given and that requested were erroneous — not applicable to the case nor authorized by the facts. If defendant shot at Clark only for the purpose of alarming him, the offense would be aggravated assault. McCullough v. The State, 24 Texas Crim. App., 129. He could not be acquitted on such evidence. The court did not submit the issue of aggravated assault to the jury. This may have caused the jury to assess the higher punishment of assault with intent to murder. While we would not disturb the verdict upon the facts, yet the jury were precluded from passing upon the mitigating fact in the case; that is, the want of intent to kill. If the specific intent to kill was wanting, the offense would be aggravated assault. They were left to decide between acquitting upon the one hand, and of convicting of an assault to murder on the other, when the facts raised the issue of au inferior degree of assault. It was clear defendant was guilty of assault, and they were thus forced to convict of the only grade submitted to them, to wit, assault with intent to murder. An honest jury could not acquit defendant of every grade of assault under the facts before us, for it is shown that defendant fired three shots at his fleeing enemy. This evidence was met by the testimony from the defendant that he had no intention of killing Clark, but only fired to alarm him, and that the shots were fired over his head and to one side, and not at him. Defendant proved by two witnesses that he was a good pistol shot, and by one witness that he saw him hit a small spot in a tree at thirty steps at the second shot. He offered to prove the same facts by other witnesses, as a circumstance tending to prove that he had not the specific intent to kill Clark. The court correctly excluded this proffered evidence, if it in fact was excluded. Hawkins v. The State, 17 Texas Crim. App., 595. Hpou objection of the State, the court remarked: “It is too late now, but if you had objected in time I would sustain your objection to the witness who testified as to the shots, for it has nothing to do with the case.” To this remark exception was also reserved. Whereupon the court further remarked to counsel: “The question as to whether the defendant is a good shot or not has nothing to do with the case. I don’t care whether he could hit a spot on a tree, or whether he could hit the man in the moon.” This was excepted to also. In qualifying the bill, the court says he informed counsel that the defendant might prove that he was a good shot at men. This leaves the bill in rather a peculiar shape, and it is doubtful whether the evidence was, by the ruling of the court, withdrawn or left before the jury. While the testimony may have been of small probative force, yet we are of opinion that it should have gone to the jury for what it was worth, as bearing upon defendant’s intent, unin-cumbered with the remarks of the court. The court should simply rule upon the objections to the admission or rejection of testimony without comment. Such is the spirit, and even letter, of the statute. Inquiry on appeal as to whether injury was caused by comments of the court in such state of case ought not to be a question for revision.

The judgment is reversed and cause remanded.

Reversed, and remanded.

Judges all present and concurring.