Miles v. State
Court of Appeals of Texas
Appeal from the County Court of Scurry. Tried below before the Hon. E. J. Msbett, County Judge. By the indictment in this case it was charged that the appellant and one John Chambers, in Scurry county, and on October 4, 1885, made an aggravated assault upon Will. Lockwood, by “striking and beating him, the said Will. Lockwood, with a pistol in a manner calculated to inflict serious bodily pain and injury.”
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Appeal from the County Court of Scurry. Tried below before the Hon. E. J. Msbett, County Judge. By the indictment in this case it was charged that the appellant and one John Chambers, in Scurry county, and on October 4, 1885, made an aggravated assault upon Will. Lockwood, by “striking and beating him, the said Will. Lockwood, with a pistol in a manner calculated to inflict serious bodily pain and injury.” Upon appellant’s separate trial the jury found him guilty, “as charged in the indictment,” and assessed his punishment at a fine of twenty-five dollars. Lockwood, the assaultee, was the…
1Opinion of the Court
Willson, Judge.
It was error to overrule the exception to the indictment in so far as said indictment undertakes to charge an aggravated assault. “Striking and beating with a pistol in a manner calculated to inflict serious bodily pain and injury” does not per se constitute an aggravated assault. If the pistol was a deadly weapon when thus used, or if the assault had been made with premeditated design, it would have been an aggravated asrault; but the indictment does not allege either of these conditions. (Penal Code, art. 496, sub. div. 8 and 9.) The indictment is good for a simple assault…
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