McMillan v. State , 35 Tex. Crim. 370 ( 1896 )

HENDERSON, Judge.

The appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years in the penitentiary. There is no evidence in the statement of facts requiring a charge upon self-defense, and none whatever requiring a charge upon manslaughter, upon the assumption that the wound proved fatal. The court, however, instructed upon self-defense and aggravated assault, upon the hypothesis that if the wound had proven fatal the homicide would have been manslaughter. As above stated, the facts demand no such charges. In regard to self-defense, the court submitted to the jury the doctrine of provoking the difficulty. This was error. But the main error committed by the court was in instructing the jury upon self-defense at all. There was no exception reserved to the charge of the court in regard to this matter. We look, then, to the charge as given, and the facts of the case, to determine whether this abstract erroneous charge was calculated to injure the rights of the appellant. We cannot perceive in what respect his rights were injured. The charge requested by appellant, so far as applicable to the facts of the case, was submitted to the jury in the main charge. The court explicitly instructed the jury that they could not convict of an assault with intent to' murder, unless the testimony established the fact, beyond a reasonable doubt, that the assault was made with the specific intent to kill. This was the only issue in the case, viz: was the assault made with the intent to kill? The charge was very clear upon this point, and as favorable to the defendant as it could possibly have been written. The court also instructed the jury in regard to aggravated assault, if they should fail to believe that it was made with the specific intent to kill. The case demanded no other instructions, and this was sufficient. Judgment affirmed.

Affirmed.