Jessie v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge. —

An indictment for assault with intent to murder need not allege that the assault was with malice aforethought, unless the State seeks a conviction for assault to murder upon malice aforethought. Friday v. State, 117 Texas Crim. Rep., 37; Cates v. State, 118 Texas Crim. Rep., 35. Such indictment need not set out the means or instrument used to effect the assault. Perez v. State, 114 Texas Crim. Rep., 473.

The trial court in this case, — following the mandate of section 2 of the present statute relative to assault to murder, as amended by chapter 61,…