Perez v. State , 114 Tex. Crim. 473 ( 1929 )

Appellant urges that the indictment did not charge the offense, and that we erred in declining to uphold his motion in arrest of judgment. The indictment charged that Perez shot O'Dell with malice aforethought and with intent to kill him. We have often held that in charging an assault with intent to murder "It is not necessary to state the instrument or means made use of to effectuate the murderous intent." Montgomery v. State, 4 Texas Crim. App. 140; Payne v. State, 5 Texas Crim. App. 35. See numerous authorities cited by Mr. Willson in his Criminal Form Book, Form No. 477. Where there is an allegation that in what was done there was an intent to kill, also that what was done was with malice aforethought, — there would be left only the question as to whether the indictment sufficiently alleged an assault. If so, such indictment would charge an assault with intent to murder.

Any unlawful violence to another with intent to injure him is an assault and battery, within the terms of Art. 1138 P. C.; any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault. We know of no case holding the allegation of an ability to commit a battery, as necessary in an indictment for assault. The contrary has been the rule since Greenwood v. State, 35 Texas Rep. 583. We held in Crutchfield v. State, 10 S.W.2d 119, that to allege that an act was done with malice aforethought, was equivalent to an allegation that such act was intentional. It is said in Art. 8, P. C., that all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed. This is but a rule of common sense and is applicable to words used in an indictment. Taking into consideration the use of the language employed in the instant indictment, and looking to the indictment as a whole, we do not regard it as a strained construction to hold that an indictment which charges that P shot O with malice aforethought and with intent to kill him, charges an assault with intent to murder. The omission of the allegation that P made an assault upon O, and the omission of some description of the general character of the weapon used in so doing, is not to be commended but avoided. It is better and more commendable to adhere to beaten paths in such matters, thus avoiding multiplication of needless issues and increase of unnecessary labor in the solution of such issues.

Being unable to agree with the contention of appellant, and believing that the indictment sufficiently charges the offense, the motion for rehearing will be overruled.

Overruled.