Robert P. White v. The State, 22 Tex. 608

Bell, J. On tbe trial of this cause, tbe judge instructed tbe jury, in substance, that they might find tbe defendant guilty of “an attempt to commit an assault, with intent to commit murder,” and that tbe punishment for that offence was fine, and imprisonment in tbe county jail, or either, at tbe discretion of tbe jury ; or by confinement in tbe penitentiary, not less than one, nor more than two years. So reads tbe charge of tbe judge, in tbe record which is before us.

In evident response to this portion of tbe charge, tbe jury found tbe defendant “guilty of an attempt to commit an assault, with intent to murder,” and they assessed bis punishment at confinement in tbe penitentiary for eighteen months. Tbe charge of tbe court is erroneous, and tbe verdict of tbe jury is unauthorized by any law of which we have any knowledge.

There is no such offence known to tbe law as “an attempt to commit an assault, with intent to murder.” We presume that tbe able and experienced judge, who tried tbe case, was prevented by tbe burry of business, or by some other cause, from giving tbe case a proper consideration, and that bis attention was not called to tbe error, in time to afford him an opportunity to correct it. Tbe judgment is reversed, and tbe cause remanded. Reversed and remanded.