Small v. State

We have said in many cases that it was sufficient to charge the offense of assault with intent to murder, to say in the indictment that A did then and there make an assault upon B with intent to murder him; also it is held that it is sufficient to charge that A did, with malice aforethought, make an assault on B with intent to kill B.

Attention is called in appellant's motion for rehearing herein to the fact that while apparently the offense of assault to murder in this case was intended to be charged in accordance with the second form above referred to, that there is no word "with" just before the words "malice aforethought," in the indictment, but that instead there appears the word "will," so that the indictment reads that Jeff Small did "will malice aforethought." No motion to quash this indictment was made in the trial court before the trial, but the question seems attempted to be raised in the motion in arrest of judgment. Such matter should ordinarily be raised in a motion to quash. Mosier v. State, 90 Tex.Crim. Rep.. We, however, think it impossible that the accused was misled, or that he was not informed by what appears to us to be a plain typographical error or clerical mistake, that the pleader intended to charge that the assault was "with malice aforethought." The expression "with malice aforethought" is a sort of formula well understood and settled in practice as a necessary element in certain offenses, that of assault to murder being one of them, and there seems no room for serious doubt of the proposition that in the instant case, when viewed in the light of the context, the pleader intended to say that the assault was "with malice aforethought," and that the accused was sufficiently informed of the intention of the pleading. Garza v. State,87 Tex. Crim. 537; Dupree v. State, 80 Tex.Crim. Rep.; Coffey v. State, 82 Tex.Crim. Rep.; Compton v. State,67 Tex. Crim. 15. See also Art. 8 P. C.

The motion for rehearing will be overruled.

Overruled.

HAWKINS, J., absent.