Wagner v. State

DAVIDSON, Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at two years’ confinement in the penitentiary. From the judgment and sentence of the lower court he prosecutes this appeal. The indictment in this case is in the usual form, charging appellant with an assault with intent to kill and murder, and is sufficient. The supposed errors of the court in regard to the admission and rejection of testimony cannot be revised, because no bills of exception were reserved to the rulings of the court. Appellant was the husband of the prosecutrix, the woman who was shot. She and her husband were in the room together, no other person being present. Witness went to the scene of the shooting immediately afterwards, and found them there, and the woman wounded. Appellant contends, and so testified, that the shooting was accidental, and complains of the court’s charge in regard to this matter. The court instructed the jury that, if they had a reasonable doubt as to whether the pistol was discharged accidentally, they should acquit the appellant. The court’s charge was correct, and a direct application of the law to this phase of the ease. It is also contended that the charge is defective because it does not define an assault. The court charged the jury that, if appellant intentionally and unlawfully, with malice aforethought, shot Hattie Wagner with a pistol, with intent to kill her, he would be guilty of an assault with intent to murder. It cannot be questioned that, if this be the ease, appellant would be guilty of an assault with intent to murder. There was no necessity, under the facts of this case, of defining an assault. Every element of an assault was embraced in the charge of the court, and we recommend this form of charge under such a state of facts as this. In this case the parties were in a few feet of each other. The prosecutrix was shot. The question of ability to commit a battery was not in this case. The appellant could not have shot his wife with intent to kill, with malice aforethought, without intending a battery, and committing a battery. The violence was unlawful. Hence, as we have said above, all the elements of an assault and battery were included in the charge. The evidence is amply sufficient to show that this shooting was intentional, and no accident. The judgment is affirmed.

Affirmed.