Hodges v. State

• Decision Date: 15 April 1914
• Docket Number: (No. 3093.)
• Citation: 166 S.W. 512
• Parties: HODGES v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W. 512

HODGES v. STATE.

(No. 3093.)

Court of Criminal Appeals of Texas.

April 15, 1914.

Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.

D. H. Hodges was convicted of an aggravated assault, and he appeals. Reversed and remanded.

Templeton & Templeton, of Wellington, W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted for committing an aggravated assault under subdivision 9 of article 601, Pen. Code 1895; the indictment charging that the assault was committed with "premeditated design and by the use of means calculated to inflict serious bodily injury." It is thus seen that, to constitute this offense under this provision of the Code, two things must combine: First, the assault must be committed upon "premeditated design"; that is, from a fixed purpose formed in the mind, and not upon a rash, inconsiderate impulse. It is true, the length of time is immaterial if the evidence shows a formed and fixed purpose and design. And, second, the assault under such circumstances must be committed by means calculated to inflict serious bodily injury. The real injury inflicted is not so material, except in so far as it may tend to show that the means used were calculated and perhaps did inflict serious bodily injury. While the court submitted both simple and aggravated assault, yet he did not in the charge instruct the jury as regards the reasonable doubt in favor of defendant as between the two degrees; and while a failure to do this would not present error in and of itself alone, yet if he had so done, the error in failing to give appellant's special charge, in which he requested the court to charge the jury that, if the difficulty between appellant and Mr. Howell arose over provocation arising at the time, the defendant would not be guilty of an aggravated assault. The testimony offered in behalf of defendant raised the issue that he went to the place where Mr. Howell and another were engaged in a fight, not knowing who they were, and, when he approached, Mr. Howell accused him of inciting the fight between himself and Watkins, and the fight between appellant and the prosecuting witness grew out of this matter — a sudden quarrel, ill feeling already existing between them, and a fight with no premeditation. It is true that the state's evidence would sustain a finding that the assault was premeditated, and in a measure deliberate; yet, the issue being in the case, the court should have in some way clearly instructed the jury the distinguishing features between aggravated and simple assault under the section of law upon which the prosecution was based.

As the case will be reversed, we will not discuss the testimony further than to...