1875.] MOORING v. THE STATE. 8?
Opinion of the court.
Procedure, arts. 3059-3067.) We are of opinion that there
Is no departure from the requirements of these articles.
The indictment charges that the assault was made with a
deadly weapon, a knife, with which the indictment charges
that the defendant attempted to cut, stab, and strike Bullard,
with intent to injure him, and, in view of the evidence,
the court did not err in confining the charge to the
jury to al aggravated assault. (O'Connell v. The State,
18 Tex., 343; Jackson v. The State, 25 Tex. Supp., 229.)
There is some conflict in the evidence as to what occurred
between defendant and Bullard, the party assaulted.
The defendant, as proved by Bullard, said "I will cut
your G--d d-n throat." Maloney's statement is, "If
you don't go away from here and let me alone, I will cut
your throat." The witness McKey heard defendant say,
"I will cut your d-n throat." There is nothing in this
case that calls for the application of the law of self-defense.
The witnesses agree in the statement that the defendant
turned his back to Bullard, opened his knife, and turned
to him again and made the threat to cut his throat. Bullard
had expressed a desire for a peaceable settlement of
their differences, and it was not necessary for the defendant
to use violence to protect himself from threatened
injury. It appears from the evidence that he intended at
the time to commit a battery, and that he had the ability
to commit it, and, unexplained by further proof, it was a
question for the jury whether the defendant was or not
prevented from carrying his intention into execution.
(IHigginbotham v. The State, 23 Tex., 574; Bell v. The
State, 29 Tex., 492.)
Finding no error in the charge of the court nor in the
verdict of the jury, the judgment is affirmed.
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 July 11, 2014.