Longley v. State , 43 Tex. 490 ( 1875 )

Reeves, Associate Justice.

Appellant,who was charged with threatening to take the life of T. G. T. Kendall, appeals from a conviction assessing his punishment at two years’ confinement in the penitentiary.

Appellant complains of the action of the court in striking out his plea of former acquittal and overruling his motions for a new trial and in arrest of judgment.

The proceedings against John 3ST. Longley as set out m the plea of former acquittal can avail nothing as a defense to the present indictment, there being no verdict of acquittal and the case being dismissed by the district attorney.

There was no error in refusing to arrest the judgment on any of the grounds of defendant’s motion.

In general it is1 sufficient to follow the statute in describing the offense, and no reason is shown why this case should be an exception to the general rule. The offense is defined with sufficient certainty when the indictment charges that the threat was made to take the life of another or to inflict upon him any serious bodily injury, and that the threat was seriously made.

The indictment complies substantially with the statute, and it was not necessary that it should contain the language in which the threat was expressed. If, as suggested, the threat was merely to protect the party or to prevent the commission of some unlawful act by another, it was matter of defense, and need not be averred in the indictment.

There was no error in admitting proof that threats were made on different occasions, leaving the jury to assess the punishment for only one offense and one violation of the statute.

The only ground of the motion which could in any view of the case injuriously affect the appellant relates to the third paragraph of the charge of the court to the jury.

Under this charge the jury may have believed that if the threat was proved the presumption would arise that it was seriously made, and that the burden of proof was on the defendant to remove the presumption, whereas the test of the guilt or innocence of the defendant was, whether the threat was seriously made,or was merely idle and with no intention of executing the same. The intent was a question of fact for the jury, and the onus was on the State to prove the facts and circumstances from which the presumption would arise that the intention was to take the life of the party so threatened. The intent with which the words may have been uttered was a question of fact and not one of law, and requires affirmative proof to warrant a conviction. This may be shown by the manner of the accused, the occasion and the cause for it, and the relations between the parties, or other attending circumstances. The charge in this respect not being satisfactory, and the case being a felony, the judgment is reversed and the case remanded.

Reversed and remanded,