Leza v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant complains in his motion because of the trial court’s failure to charge on an abandonment of appellant’s purpose of theft while in the burglarized house, and the use of excessive force in relieving himself from the custody of Mr. Foerster, he claiming that an abandonment of such original purpose being shown by appellant’s efforts to escape, and that an assault made by him in such effort should have raised the issue of murder without malice and aggravated assault. In support of this contention we are cited to the case of Cox v. State, 123 S. W.…