Barnett v. State

ON MOTION FOR REHEARING.

DAVIDSON, Judge.

Appellant insists that he was entitled to have the issue of aggravated assault submitted to the jury. A proper and timely exception was reserved to the court’s charge upon the subject.

Under a charge of murder, the issue of aggravated assault is raised when the instrument with which the murder is inflicted is not a deadly weapon per se or one which, in the manner of its use, is not ordinarily calculated to produce death, and when, in addition thereto, the evidence raises the issue of a lack of intent on the part of the accused to kill. Miller v. State,…