Harrell v. State

White, P. J.

We are of opinion that the court should have charged the jury upon the law of aggravated assault and battery, under the facts and circumstances of this case as shown by the record. Whilst the evidence discloses a most wanton, outrageous and brutal assault, and one in which most serious and grievous injuries were inflicted by appellant upon his wife, still, if an opportunity had been afforded them the jury might have found the crime committed to have been aggravated assault had they concluded from the evidence that he could have taken her life, had he desired to do so, and yet, did not do i'k though he had the opportunity and no one was there to prevent it/

To justify a conviction for assault with intent to murder, it must be shown that that was the object and intent of the assault. An intent to inflict serious bodily injury and the infliction of serious bodily injury, without such intent, is not sufficient. (See White v. The State, decided at the late Tyler term, ante, p. 259.) Whilst it is true that if a,n assault be committed with intent to inflict serious bodily injury, from which death might likely ensue, and death does ensue, the offense would be murder; still, where such was the intent and death does not ensue, the assault cannot be said to be an assault with intent to murder. In other words, the intent to murder is the gist of this offense, and no intent short of that will sustain a conviction for assault with intent to murder.

As far as the charge went, it presented the law; but we think defendant was entitled to have the law of aggravated assault submitted, in addition to the law as charged.

Because the charge of the court did not sufficiently present the law applicable to the facts in the case, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered January 27, 1883.