Ponton v. State
| Decision Date | 18 March 1896 |
| Citation | 34 S.W. 950 |
| Parties | PONTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Lavaca county; T. H. Spooner, Judge.
Bunk Ponton was convicted of assault with intent to murder, and appeals. Reversed.
A. P. Bagby & Sons, for appellant. Mann Trice, for the State.
Conviction for an assault with intent to murder: To constitute this offense, the accused must have committed an assault and battery, or an assault. To constitute an assault and battery, unlawful violence must be inflicted upon the person charged to have been assaulted,—not merely violence, but it must be unlawful violence. To constitute an assault, there must be an attempt to inflict unlawful violence upon the person, or the accused must make a threatening gesture, showing in itself, or by words accompanying it, an immediate intention, coupled with the ability, to inflict unlawful violence upon the person. We desire to call attention to the fact that there can be no assault and battery unless the violence inflicted was unlawful, nor can there be an assault unless there was an attempt, etc., to inflict unlawful violence. To constitute an assault with intent to murder, an assault and battery, or an assault, must be committed, such as have been explained above,—that is, the violence inflicted or attempted to be inflicted must be unlawful,—and to this must be added the specific intent to kill; and, in addition to this, the accused must be prompted by malice.
The court instructed the jury: "Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant did, in Lavaca county, state of Texas, on or about the 24th day of December, 1895, cut and wound S. J. Thompson with a knife, such act was an assault." This may or may not be true. If the act of cutting was unlawful, it was an assault. If not unlawful, it was not an assault, because the violence used or attempted to be used must be unlawful. The court proceeds further to charge the jury, "If such an assault was made willfully, intentionally, and without lawful justification or excuse, then the same was made upon what the law terms malice." This is not a correct proposition. The assault may have been made intentionally and willfully, and without justification, and yet not upon malice. Let us suppose that the prosecutor had slapped the jaws of the accused, producing pain, and, from the passion aroused by such a provocation, he willfully and intentionally killed; would such a killing...
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...under such circumstances it was unlawful, and the omission of the word "unlawful" from the charge presents no error. Ponton v. State, 35 Tex. Cr. R. 597, 34 S. W. 950, does not hold to the We find in the record four bills of exception to the argument of James P. Stinson, private prosecutor,......
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Young v. State
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