Rainbolt v. State

Citations

• 34 Tex. 286

Syllabus

<p>1. Notwithstanding that the recognizance for appeal in this case was not in compliance with the statute, inasmuch as the principal and the sureties were jointly and not separately recognized; yet, as the recognizance is deemed to be binding upon the parties, the court overrule a motion to dismiss for want of a sufficient recognizance.</p> <p>2. An indictment fo*' assault with intent to murder charged that the defendant made the assault “ with a certain pistol then and there presented, then and there within carrying distance,” loaded, etc. It was objected, on motion in arrest, that the allegation does not sufficiently charge an ability to commit a battery.” Held, that the objection was not well taken, and the motion in arrest was properly overruled.</p> <p>3. In a sudden quarrel, the defendant and his antagonist both drew their pistols, confronting each other within shooting distance. Defendant did not present his pistol at his antagonist, but threatened to shoot him if he cocked his pistol; when bystanders interfered, and the affair ended. Held, that the evidence did not warrant a conviction of an assault; and the defendant’s motion for a new trial should have been granted.</p>