Key v. State , 71 Tex. Crim. 642 ( 1913 )

I agree to all the above opinion, except that portion wherein it is held that the case should be reversed because the court failed to submit the issue of simple assault. I do not think the evidence would raise that issue, taking, as stated by Judge Davidson. He says "appellant's testimony clearly raised the issue that the act of maiming was not wilfully and maliciously done, but it grew out of a sudden impulse occurring during the fight," and because of this state of facts the court should have charged on simple assault.

The fact that appellant bit off a portion of Ashley's ear is not questioned; that appellant is the person who thus maimed Ashley is not denied, nor is the fact that Ashley was maimed questioned; then, if the act was wilfully and maliciously done appellant would be guilty of maiming as defined in our statute is conceded in the above opinion. The question is, if the act was not done wilfully and maliciously, of what offense would appellant be guilty? The words wilful and malicious are thus defined under our decisions: "A `wilful' act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. A `malicious' act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischief; a wrongful act intentionally done without legal justification or excuse." (Bowers v. State, 24 Texas Crim. App., 549.)

It is thus seen that the words "wilful and malicious" have the same legal meaning in this character of case, as do the words "malice aforethought" in a murder case. (White's Ann. P.C., sec. 1225 and cases, cited.) Following these cases, if the maiming took place under the immediate influence of sudden passion aroused by an adequate cause the issue of aggravated assault might be presented by the evidence, and the court submitted that issue in a way not complained of by appellant, but in such case the issue of simple assault could not arise. Our Penal Code provides: "If one intending to commit a misdemeanor, and, in the act of preparation for or executing the same, shall, through mistake, commit an offense, which in law is a felony, he shall receive the lowest punishment affixed by law to the offense actually committed."

So, in this case, if appellant, by the testimony introduced by him, raised the issue, that he intended only to commit a simple assault, yet the facts showing conclusively and beyond dispute that he committed the act of maiming in attempting to execute the assault, the law says, as recited in sec. 50 of the Penal Code, he shall be guilty of the offense actually committed, to wit: maiming, providing that he shall receive the lowest punishment for that offense. That is the only amelioration given under our laws, and, as appellant received the lowest penalty affixed by law for maiming, we, therefore, do not agree that the court erred in refusing to submit the issue of simple assault, but think he ruled correctly in the premises, and as this is the only ground upon which Judge Davidson thinks the case should be reversed, we think the case should be affirmed, and it is so ordered.

Affirmed.