The grounds relied on for *186reversing the judgment are set forth in an assignment of errors filed by the defendant in this case, the most important of which, in our judgment, is the action of the court below in overruling the defendant’s motion for a new trial. The defendant moved the court to grant him a new trial for the following reasons, to wit:

“1. The court erred in its charge to the jury.

“2. The court erred in refusing to give the charge asked by the defendant.

“ 3. The verdict of the jury is contrary to the law and the evidence.”

We think the indictment is a good one. In support of this view, see case of Bittick and Williams v. The State, 40 Texas, 117. We deem it unnecessary particularly to notice only the last two grounds set out in said motion.

The counsel of the defendant asked the following special charge, which should have been given: £ 6 Defendant asks-the court to charge the jury, if they believe from the evidence that defendant did not intend to kill the prosecutor (Dan Murray), or did not use the knife or pistol in such a manner as to evidence an intention to take life, they cannot find the defendant guilty.” The court refused to give this charge in the following words: “ Refused, because the words are used, in effect, in the charge of the court.”

It is made the duty of the judge to deliver to the jury, in writing, in all cases of felony, a charge, in which he shall distinctly set forth the law applicable to the case, and it should be applicable to every legitimate deduction which the jury may draw from the facts. Johnson v. The State, 27 Texas, 758.

Does the evidence show that the defendant intended to murder Dan Murray, or does it show that he used the knife or pistol in such a manner as evidenced an intention to kill said Murray ? If either one of these questions can be answered in the affirmative, then the judgment of the court *187below should not be disturbed. The charge asked, had it. been given, would have presented the main issue for the jury to decide in determining whether or not the defendant was guilty of an assault with the intent to murder in this-case, and this point should have been so plainly and directly presented to the jury that they could not have been misled,, or could not have lost sight of it, in considering their verdict. Whilst the judge charged the law as far as he went, at the same time the facts of the case in evidence required that the charge asked by the defendant, or something embodying the-same ideas, should have been given. If the jury had found the defendant guilty of an aggravated assault and battery, and in the exercise of its discretion had gone to the full extent of the punishment prescribed by law for this offense, we would not disturb a judgment of the lower court "in accordance with such a finding. The intent with which the-act is committed is a material fact, and when there is a deficiency of proof, as in this case, of such intent, this court can have no discretion. The case of J. F. Kerr v. The State of Texas, delivered on the 25th of October, 1875, is in point.

The facts in evidence, as given in the record hi this case,, do not show that the defendant intended to murder the said Murray, nor do they show that the defendant used the knife- or pistol in such a manner as evidenced an intention to take-the life of said Murray. For these reasons we believe that the finding of the jury and the judgment of the court below were contrary to the law and the evidence.

The judgment is reversed and the cause remanded.

Reversed and remanded.