Howard v. State

Citations

• 18 Tex. Ct. App. 348
• 1885 Tex. Crim. App. LEXIS 108

Syllabus

<p>1. Assault with Intent to Murder—Penalty.— Charge of the Court must correctly instruct the jury as to the penalty provided by the Penal Code for the oSense charged in the indictment. If the charge errs as to the penalty the conviction will be set aside, even if the error was favorable to the accused, and though no exception was taken to the charge.</p> <p>2. Same.—The trial court instructed the jury that the penalty prescribed for assault with intent to murder is confinement in the penitentiary for not less than two nor more than five years. No exception to the charge of the court was taken on account of its misinstruction as to the penalty, and the penalty assessed was a term of two years in the penitentiary,— the minimum allowed by law. Held, notwithstanding this matter is first mooted in this court, that the misinstruction is fatal to the conviction, inasmuch as the Penal Code, article 500, prescribes the penalty for the offense at confinement in the penitentiary for not less than two nor more than seven years.</p> <p>3. “ Deadly Weapon ” — Charge of the Court.— Indictment alleged that the assault was made with a “certain knife, the same being a deadly weapon.” Held, that the charge of the court should have expounded to the jury the meaning of the phrase “deadly weapon” in its application to the case made by the evidence, inasmuch as a knife is not per se. a deadly weapon.</p> <p>4. Charge of the Court.— It is error to instruct the jury to convict in case they believe certain inculpatory evidence to be true, ignoring other evidence which, if believed by the jury, might exculpate the accused or extenuate his offense.</p>