86 MOOTRNG v. THE STATE. [Tyler Term,
Opinion of the court.
the indictment: that it devolved upon the State to prove
the material facts, presumption of innocence, reasonable
doubt, and as to punishment. Defendant asked no instructions.
Defendant was convicted of aggravated assault. His
motion for new trial was overruled, and appeal taken.
G. W. Smith, for State.
REEVES, ASSOCIATE JUSTIcE.-Appellant objects to the
charge of the court, because the jury were not instructed
upon the law of self-defense and as to the punishment for a
simple assault. It is further objected that the court failed to
instruct the jury as to the' distinction between acts which
constitute an assault, when unexplained, and acts which
do not amount to an assault, when accompanied by such
explanations as show no intention to commit an assault.
The court instructed the jury as to what acts constitute
an assault and battery, and the distinction between these
offenses, as defined in the Criminal Code, and when an
assault becomes aggravated; and with reference to the
case before the jury, they were charged that an assault
becomes aggravated when committed with deadly weapons,
under circumstances not amounting to an intent to murder
or maim, &c. It is not objected that the charge is not
correct, so far as it goes, but that it does not go far enough,
and fails to present to the jury the law in another phase,
and which it was conceived was applicable to the case.
The rule is well settled in such cases. In misdemeanors
the defendant must except to the action of the court at the
time of the trial, if he is not satisfied, and if not excepted
to, it will not be revised by this court, as regards objections
of the character complained of in this case. If the law as
applicable to the case is given in the charge to the jury,
and further instructions are desired, the court must be
asked to give them at the time of the trial. (Criminal
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed October 20, 2014.