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. Page: 254
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254 CHAMBERS v. THE STATE, [Term of,
Opinion of the Court.
C. CHAMBERS V. THE STATE.
1 AGGRAVATED ASSAULT. ON TRIAL FOR, WHEN FAILURE TO CHARGE LAW
OF SIMPLE ASSAULT NO ERROR. A party charged with committing an
aggravated assault by striking with a pistol, alleged in the indictment
to have been a deadly weapon, cannot complain that the law of simple
assault was not given in charge to the jury, when the evidence showed
that the pistol, even as used, was a deadly weapon.
APPEAL from Liberty.. Tried below before the Hon. H. C.
Geo. Clark, Attorney-General, cited Vaughan v. The State,
21 Texas, 752; Johnson v. The State, 26 Texas, 117.
REEVES, J. The indictment charges an aggravated assault
and battery by striking, beating, and wounding Ezekiel G.
Thompson with a pistol, stated in the indictment to be a deadly
weapon. He was found guilty by the jury, and fined one hundred
and fifty dollars.
The defendant objected to the general charge of the court as
being calculated to mislead the jury, and which, as stated in his
motion for a new trial, did so mislead them.
The court instructed the jury that if the defendant struck
and wounded Thompson with a pistol, the same being a deadly
weapon, to find him guilty, and assess the punishment for an
aggravated assault and battery.
It is not shown that the jury were misled by the charge, or
that it was calculated to have that effect. If the evidence supported
the allegations of the indictment charging an aggravated
assault and battery, there was no room to question or doubt the
grade of the offense. The evidence, we believe, was sufficient
for that purpose. It was proved that the parties quarreled, and
that the defendant struck Thompson with his hand. Thompson
had a knife in his hand at the time the defendant approached
him, but it does not appear that he attempted to use it in the
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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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/262/: accessed April 24, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .