Hill v. State
Texas Supreme Court
Hill v. State, 34 Tex. 623 (Tex. 1871)
Ogden
Hill v. State
Opinion of the Court
The indictment in this case is insufficient, because it does not charge an assault, as defined by the statute. The charge of the court is erroneous, in that it instructed the jury that they would be authorized, under the evidence, to acquit the defendant of an aggravated assault, if they did not believe him guilty of that offense, and find him guilty of a simple assault. If defendant was guilty of any assault under the evidence, it could l e none other than an aggravated assault, and not a simple assault. The evidence was wholly insufficient to support any verdict of guilty, as no offense was proven, and no venue was proven.
The judgment is reversed and the case dismissed.
Reversed and dismissed.
Reference
- Full Case Name
- Thomas Hill v. State
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- 1. Indictment, alleging time and place, charged that the defendant, with force and arms, did unlawfully commit an aggravated assault upon the body of one S., then and there being in the peace of God and of the State, and with a pistol, to-wit, a six-shooter, loaded, etc., did commit unlawful violence upon the person of said S., by drawing against and upon the said S. the said pistol, which was then and there a deadly weapon, and by using threats and threatening gestures towards the said S., contrary etc., etc. Hold, that the indictment does not charge an assault, as that offense is defined by the statute, and it is therefore insufficient to support a conviction even for simple assault. 2. In a trial for an aggravated assault upon S., the State proved that defendant and another were quarreling, and S. stepped up and ordered defendant to “ dry up, or he would make him whereupon defendant told S. to go off and let him alone or he would shoot him, and raised his pistol out of its holster, but did not cock it, or attempt to hurt S. Held, that if any offense was committed by the accused, it was necessarily aggravated assault; and therefore it was error to charge the jury that they might acquit of aggravated and convict of simple assault, which they did. 3. Venue must be proved, or the conviction cannot be sustained.