Claiborne Johnson v. The State, 43 Tex. 576

Roberts, Chief Justice. The only ground of objection taken to the conviction in the motion for a new trial which it is necessary to pass upon is, that “the jury found the defendant guilty without and against evidence.” The evidence on the trial, as contained in the statement of facts, is entirely deficient in showing any distinct act on the part of the defendant indicating an effort then to shoot William Ross, or otherwise use the gun which he held in his hands in such manner as to inflict violence upon his person. In every assault there must be an intention to injure, coupled with

an act which must at least be the beginning of the attempt to injure then, and not

an act of preparation for some contemplated injury that may afterwards be inflicted. (Higginbothem v. The State, 23 Tex., 574.) Judgment reversed and cause remanded. Reversed and remanded.