Stewart v. State
| Decision Date | 27 March 1899 |
| Citation | 50 S.W. 459 |
| Parties | STEWART v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Galveston county; E. D. Cavin, Judge.
Thomas Stewart was convicted of an assault with intent to commit murder, and he appeals. Affirmed.
Byron Johnson and Marsene Johnson, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of an assault with intent to commit murder, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
The only question made by appellant is with reference to the charge of the court; insisting that the court's charge did not fully present the law as to aggravated assault, and that the charge asked by him should have been given. The court defined malice, and gave a charge on assault with intent to murder, and then gave two charges on aggravated assault. One of the charges given by the court on aggravated assault was predicated on an assault made by appellant, inflicting a wound on the prosecutor with a knife, the same being a deadly weapon, but not made with a specific intent to kill. This charge is a proper one, and was predicated on some evidence in the case. The court gave another charge on the subject of aggravated assault, in the following language: "If you believe from the evidence that, about the time and place stated in the indictment, the defendant had just been struck a blow by Zack Jones, which caused the defendant pain or bloodshed, and there was thereby produced in the defendant's mind such a degree of rage, anger, sudden resentment, or terror as rendered him incapable of cool reflection; and if you further believe from the evidence, and beyond a reasonable doubt, that in that condition of mind the defendant did, with malice aforethought, and with the intent to kill said Zack Jones, unlawfully cut said Zack Jones with a knife,—then find said defendant guilty of aggravated assault and battery, and assess his punishment by confinement," etc. If there is error in this charge, it is that portion of the charge with reference to malice aforethought; that is, the court tells the jury, if appellant, being enraged by the blow struck him by the prosecutor, of his malice aforethought cut the prosecutor with a knife, then he would be guilty of only aggravated assault. We understand the law to be that if appellant made the assault on the prosecutor of his malice aforethought, and with intent to kill, and with a weapon...
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