Marcelino Garcia v. The State, 19 Tex. Ct. App. 389

Hurt, Judge. This indictment charges an assault with intent to murder, omitting the weapon with which said assault was made. The proof shows that the assault was made with a butcher-knife, such as, under the statute, is a bowie-knife or dagger. (Penal Code, art. 611.) Unless the assault be made with a bowie-knife or dagger, or in disguise, the punishment is confinement in the penitentiary not less than two nor more than seven years.

If, however, it be made with a bowie-knife or dagger, or in disguise, the punishment shall be double. (Art. 493, Penal Code.) Hot withstanding it is not alleged that the assault was made with a bowie-knife or dagger, the learned judge charged the jury: “ You are further instructed that if you find from the evidence that the assault, if any, was made with a bowie-knife or dagger, then the punishment will be by confinement in the penitentiary not less than four nor more than fourteen years.” Under the above charge the jury assessed appellant’s punishment at confinement in the penitentiary for the term of ten years.

The question is: Was it error to submit to the jury this charge? We think so. Upon this subject Mr. Bishop says: “ In other connections and in various aspects of the question we have seen that every indictment must distinctly set down each and every individual act and intent which, in matter of law, determines or influences the punishment.” (1 Bish. Crim.

Proc., 538.) Again he says: “If the punishment to be inflicted is greater or less according to the value of the property, it must be stated in the indictment, because every indictment, for whatever offense, must set out every circumstance which the law makes an element in the punishment.” (2 Bish. Crim. Proc., 48.) ¡Now the plain reason of the rule is, that if the circumstances which constitute the crime or increase the punishment are not set out in the indictment, the accused would not be informed of the offense with which he is charged, or of the penalty to which he is liable. (2 Bish. Crim.

Proc., 572.) There was no person who saw the assault except the prosecutor, Diaz. The State introduced in evidence the confessions of defendant, who stated: “All I have to say about this is that I did cut Encarnación Diaz. He came at me and struck me with a bottle, and I cut him with my knife, and all I regret is that I did not kill him.” Upon this theory of the case, the trial judge submitted to the jury the law of self-defense.

When viewed, however, with reference to the testimony of Diaz, we are of the opinion that a charge should have been given upon the question of aggravated assault and battery, because of the passion aroused by the provocation arising from the blow with the bottle. We are not to be understood as intimating that such passion was produced in the mind of defendant, but that under defendant’s theory this question should have been submitted to the jury.

Because under the allegations of this indictment the court below was not warranted in charging the jury that if they believed from the evidence that the assault was made with a bowie-knife or dagger thej’' would assess his punishment from four to fourteen years, and from failure to charge upon aggravated assault, the judgment is reversed and the case remanded. Reversed and remanded. [Opinion delivered November 18, 1885.]