Smith v. State

GRAVES, Judge.

Appellant was convicted of an assault with intent to murder without malice upon one Charles B. Sims and by the jury assessed a penalty of one year in the penitentiary.

It is claimed herein that the trial court committed fundamental error in its charge in paragraph 13 thereof, which reads as follows:

“But if from the evidence you believe beyond a reasonable doubt that the defendant, Harrison Smith, on or about the 11th day of December, 1949, in the county of Lubbock and state of Texas, with a deadly weapon, to wit, a rifle, and without malice, as that term has been hereinbefore…