Wimberly v. State , 7 Tex. Ct. App. 329 ( 1879 )

Clark, J.

The defendant’s motion in arrest of judgment should have been sustained. The indictment charges an assault by the defendant and others upon the person of one Alex. McConnico with a pistol, and made feloniously and upon express malice ; and further charges the discharge of the pistol at the said McConnico, “with the wilful and felonious intent and of their express malice aforethought to kill and murder,” but fails to state whom they intended to murder. This cannot be left to inference, but must be expressly alleged. Whart. Prec, of Indict., sect. 242; The State v. Nations, 31 Texas, 561; The State v. Patrick, 3 Wis. 812.

The judgment is reversed and the cause remanded. Reversed and remanded.