DocketNumber: No. 1384
Citation Numbers: 13 Tex. Ct. App. 415
Judges: Hurt
Filed Date: 2/3/1883
Status: Precedential
Modified Date: 9/3/2021
Appellant was convicted of an assault with intent to murder one Richard Hammonds.
The learned judge before whom this case was tried, after having defined an assault, assault and battery, murder of the first and second degrees, and manslaughter, applied the law affirmatively to the case as presented by the evidence, as follows:
“ If you shall believe from all the evidence before you, beyond a reasonable doubt, that at any time within three years next before the finding of the indictment in this case, which was on the twenty-sixth day of November, 1875, within the county of Walker, State of Texas, the defendant Jo. Gillespie did wilfully, with his malice aforethought, either express or implied, as herein before explained to you, shoot at and wound the said Richard Hammonds, with a double-barreled shot gun, the same being a deadly weapon, within carrying range of the same, with intent to kill or inflict serious bodily injury on the said Richard Hammonds, and that had the said Richard Hammonds thereby been killed the offense would have been murder, then you will find the said Jo. Gillespie guilty of an assault with intent to commit murder.” Article 500, Penal Code, provides that, “If any person shall assault another with intent to murder he shall be punished,” etc. The question here presented is, can a party be guilty of this offense without he intends to take the life of the other person? If the intention is to inflict serious bodily injury, and not to take life, is he guilty of an assault with intent to murder? This question has been passed upon by this court in two cases, White v. The State, ante, p. 259, decided at the last Tyler term of this court, and Harrell v. The State, ante, 374, decided at this term of the court; and in these cases the court held that the specific intent to kill must prompt the assault. “In criminal law, when a special intent beyond the natural consequences of the thing done is essential to the crime charged,
We have no doubt but that the objectionable portion of the above charge was inspired by Article 502, Penal Code, which is a§ follows: “Whenever it appears upon a trial for assault with intent to murder that the offense would have been murder had death resulted therefrom, the person committing such assault is deemed to have done the same with that intent.” From this article it is inferred that in all cases where if death had resulted from the assault the homicide would have been murder, death not ensuing the assault would be with intent to murder. This conclusion we do not believe to be correct. A simple illustration will suffice to expose its fallacy: Suppose A assaults a party with intent to rob or rape; death ensuing, murder of the first degree would be the offense. But who will insist, death not resulting, that the party would be guilty of an assault with intent to murder? We will not discuss this subject further. See our construction of Article 502, in White v. The State, last Tyler term, ante, p. 259.
For the error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered February 3, 1883.