Opinion
No. 12702.
Delivered November 6, 1929.
Assault and Battery — Charge.
Refusal to charge on simple and aggravated assault on trial for assault to murder was erroneous in view of evidence presenting issue as to lack of intent to kill and firing shot only to alarm.
Appeal from the District Court of Bastrop County. Tried below before the Hon. J. B. Price, Judge.
Appeal from a conviction for assault with intent to murder, penalty two years in the penitentiary.
The opinion states the case.
Harris Harris of Austin, for appellant. A. A. Dawson of Canton, State's Attorney, for the State.
Offense, assault to murder; penalty, two years in the penitentiary.
Officers were called to a Mexican house where a disturbance was in progress. Arriving there, they found appellant armed with a pistol. Asked to give it up, he refused, pointed a gun at one of them and threatened to kill him if he came closer. He was pursued by the officers. As he fled he fired back at or towards an officer who was some 120 to 150 feet away at the time. He ran under a house a short distance away. Told to come out, he did so without any further attempt to use his gun, which was voluntarily left by him under the house. The Mexican testified for himself that he was recently from Old Mexico, that he was drunk at the time of the alleged offense, and ran because he was afraid of being arrested; that he did not shoot at the officers; that he shot his pistol to scare them; that he did not intend to kill any of them.
The appellant correctly insists the Court erred in refusing to charge on simple and aggravated assault, since there was present under the facts an issue as to a lack of intent to kill and a shot fired only to alarm. Cubine v. State, 44 Tex. Crim. 596; Miller v. State, 13 S.W.2d 865; Ivory v. State, 48 Tex. Crim. 279; Pearce v. State, 37 Tex.Crim. Rep.; Price v. State, 81 Tex.Crim. Rep..
We deem it unnecessary to pass on other alleged errors. Some of appellant's bills are so qualified as to show no error and others present questions not likely to again arise.
Reversed and remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.