Covert v. State , 134 Tex. Crim. 12 ( 1938 )

The offense is assault with intent to murder without malice; the punishment, confinement in the penitentiary for one year.

It was charged in the indictment that the assault was made on I. S. Neal, Jr. Mr. Neal and Mr. Robertson, who were peace officers, found appellant in a public place in an intoxicated condition and carried him to his home. After they had returned to town appellant secured a pistol and went to the cafe where the officers were together. Drawing his pistol and pointing it at Mr. Robertson, appellant said: "If you are game let's see it." Neal grabbed the pistol and was shot in the arm. We quote from his testimony as follows:

"I was close enough to him [appellant] to reach out with my left hand and reach the gun, and the gun didn't go off until I grabbed it — well it went off, I judge, just at the time I grabbed it or maybe just before. I couldn't be positive but I know the gun went off before I turned it up."

It appears that the pistol was cocked, and the testimony was to the effect that it was "easy on the trigger."

Appellant did not testify and introduced no witnesses.

We deem the evidence sufficient to support the conviction. See Smith v. State, 95 S.W. 1057.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.