Stinnett v. State

DAVIDSON, Judge.

Appellant was indicted for and convicted of burglary. The entry is charged to have been made with intent with malice aforethought to murder Cymantha Stinnett. The exceptions to the indictment are not well taken. It sufficiently charges the ingredients of burglary with intent to murder.

The motion for new trial criticises the charge because it defines simple and aggravated assault. In the absence of the statement of facts, we can not say this was error, and it may have been perfectly harmless, and may have been required by the evidence.

The court charged the jury, if they believed the defendant entered said house to assault said Cymantha Stinnett, with intent to murder her, he would be guilty, etc. This is urged as error. We can not concur in this view. If he entered the house with intent to commit murder, this necessarily involved the idea that the assault made in pursuance of the design would be with that intent, and falling short of actual killing, would be an assault to murder.

Nor was it error to omit a definition of murder in the second degree. It was sufficient to define murder and malice without giving a definition of both degrees of murder; for if he entered with intent to commit murder in either degree, he would be guilty under the indictment.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.