Hill v. State

• Decision Date: 01 January 1870
• Parties: THOMAS HILL v. THE STATE.
• Court: Texas Supreme Court

34 Tex. 623

THOMAS HILL

v.THE STATE.

Supreme Court of Texas.

1870.

1. Indictment, alleging time and place, charged that the defendant, with force and arms, did unlawfuly commit an aggravated assault upon the body of one S., then and there being in the peace of God and of the state, and with a pistol, to wit, a six-shooter, loaded, etc., did commit unlawful violence upon the person of said S., by drawing against and upon the said S. the said pistol, which was then and there a deadly weapon, and by using threats and threatening gestures towards the said S., contrary, etc., etc. Held, that the indictment does not charge an assault, as that offense is defined by the statute, and it is therefore insufficient to support a conviction even for simple assault.

2. In a trial for an aggravated assault upon S., the state proved that defendant and another were quarreling, and S. stepped up and ordered the defendant to “dry up, or he would make him;” whereupon defendant told S. to go off and let him alone or he would shoot him, and raised his pistol out of its holster, but did not cock it, or attempt to hurt S. Held, that if any offense was committed by the accused, it was necessarily aggravated assault; and therefore it was error to charge the jury that they might acquit of aggravated and convict of simple assault, which they did.

3. Venue must be proved, or the conviction cannot be sustained.

APPEAL from Parker. Tried below before the Hon. Charles Soward.

One of the head notes condenses, but fully comprehends, the testimony most unfavorable to the appellant. Some of the witnesses saw no attempt on his part to draw his pistol, and otherwise sustained his version of self-defense against an apprehended assault upon himself. There was no proof that Stimpson, the assaultee, was an officer.

The verdict was guilty of simple assault, and it assessed a fine of fifty dollars against the defendant, who moved for a new trial and in arrest of judgment. His motion being overruled, he appealed.

W. M. Walton, for the appellant.

I. The indictment is bad--1. Because too vague and indefinite. 2. Because it fails to allege an intent to injure.

That it is too vague, see 1 Bishop, Cr. Proc. §§ 47, 277; also State v. Powell, 28 Tex. 627. The facts which constitute the offense, and the manner of procedure should be plainly stated and not left to inference, or to be drawn from conclusion of law or presumed from the state of facts. It does not allege an intent to injure. Where an assault is alleged, if no battery be proven, then the indictment is bad,...