Milstead v. State

Citations

• 19 Tex. Ct. App. 490
• 1885 Tex. Crim. App. LEXIS 228

Syllabus

<p>1. Indictment—Intent.— It is not essential that an indictment for assault should allege an intent to injure or unlawful violence, especially when the transaction as set out imports illegality.</p> <p>2. Same — Aggravated Assault.— An assault which is committed in a court of justice is expressly declared, by subdivision 2 of article 498 of the Penal Code, to be an aggravated assault. See the opinion for an indictment held sufficient to charge such an aggravated assault.</p> <p>8. Same — Practice — Charge of the Court.— It is a rule well settled under the practice of this State, that, upon a charge of aggravated assault, an accused may be convicted and punished for a simple assault. The rule which confines the State, in its effort to establish aggravated assault, to evidence in support of the aggravation alleged in the indictment will not preclude a . conviction for simple assault. The aggrava tion alleged in this case was that the assault was made upon a justice of the peace, his court being then and there in session. The proof showed that an assault was committed upon the justice, but not in his court. Held, that the conviction was authorized by the indictment. See the opinion for a charge of the court upon the question held correct.</p>