Brinkley v. State

■ DAVIDSON, P. J.

Appellant was tried and convicted under article 1024a of the Acts of 1913, found in Branch’s Ann. Penal Code at page 940. 'His punishment was assessed at 18 months in the penitentiary for willfully making an assault upon Maynard Wilburn.

The indictment contains twd counts, one for assault to murder, and the other for willfully making an assault on Wilburn with a weapon unlawfully carried. Both counts were submitted; the jury convicted, however, under the second count.

Briefly stated, the evidence shows that Ben Brinkley, jointly charged with appellant, had killed one of the…