Pierce v. State
| Decision Date | 28 June 1886 |
| Citation | 1 S.W. 463 |
| Parties | PIERCE v. STATE. |
| Court | Texas Court of Appeals |
Four distinct issues are fairly presented by the evidence: (1) An assault with intent to murder; (2) an aggravated assault; (3) a simple assault; and (4) self-defense.
The first issue was sufficiently and correctly submitted to the jury by the charge of the court.
As to the second issue, while the charge of the court in relation thereto is not literally correct, and is perhaps somewhat awkwardly expressed, still we think it is substantially correct, and, there being no exception thereto taken at the time of the trial, we are not called upon to revise immaterial errors therein.
As to the third issue, there was no charge whatever. There is evidence tending to show that defendant was striking, or attempting to strike, the injured party with a pistol, when the pistol was accidentally discharged, whereby the injury complained of was inflicted. If the pistol was used by defendant to strike with only, the assault would not be aggravated, unless the evidence showed that when used in that manner it was a deadly weapon or that, by means of such use, serious bodily injury had been inflicted; or that the assault was committed with premeditated design, and by the use of means calculated to inflict great bodily injury. Pen. Code, art. 496. There is no proof establishing either of these conditions of injury. There is no proof that the pistol was a deadly weapon when used to strike with, and, in the absence of such proof, it would be presumed that it was not that character of weapon when so used. When a gun or pistol is used to strike with, it is not necessarily a deadly weapon, but would be such or not, according to its size, or the manner of using it; and its character is usually to be determined by the jury. Hunt v. State, 6 Tex. App. 663; Wilson v. State, 15 Tex. App. 150. If, therefore, the pistol, when used to strike with, was not a deadly weapon, and, while being so used, was accidentally discharged, whereby serious bodily injury was inflicted, and if the assault was not committed with premeditated design, and by the use of means calculated to inflict serious bodily injury, and if no serious bodily injury was inflicted by striking with the pistol, then such assault would be of no higher grade than a simple assault; for "no act done by accident is an offense, except in certain cases specially provided for, where there has been a degree of...
To continue reading
Request your trial
-
Thomas v. State
...weapon without proof of the manner in which it was used. See, e.g., Ballard v. State, 13 S.W. 674 (Tex.App.1890); Pierce v. State, 21 Tex.App. 540, 1 S.W. 463 (1886); Hunt v. State, 6 Tex.App. 663 (1879). The only operative definition of the term at that time was developed by the courts for......
-
Neyland v. State
...bawdyhouse situated in the reservation and where prostitution is openly conducted in violation of law. What is said in Pierce v. State, 21 Tex. App. 540, 1 S. W. 463, where the same right was contended as to a gambling room, is applicable here. The court in no way limited appellant's right ......
-
Gunn v. State
...of article 1106 should have been given, and we do not deem this in any way contrary to our views as herein expressed. In Pierce v. State, 21 Tex. App. 540, 1 S. W. 463, the next case discussing the law of said article, three witnesses also testified that the injured party was attacking the ......
-
Renow v. State
...Cr. R. 586, 21 S. W. 679; Orman v. State, 24 Tex. App. 503, 6 S. W. 544; Hall v. State, 43 Tex. Cr. R. 479, 66 S. W. 783; Pierce v. State, 21 Tex. App. 548, 1 S. W. 463. There was some discussion of the statute in Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; but the point was not in fa......