Smith v. State

DAVIDSON, Judge.

Omitting formal parts, the indictment alleges that appellant, “ in the county of Houston and State of Texas, on the first day of October, A. D. 1891, with malice aforethought, in and upon D. H. Bayne, did make an unlawful assault, with intent then and there to kill him, the said D. H. Bayne, against the peace and dignity of the State.” A motion in arrest of judgment was urged against this indictment, because it charged the assault was made with intent to kill, and not with intent to murder, the assaulted party.

In order to constitute this offense, it is essential that the…