
    JONES v. STATE.
    (No. 6221.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.
    Rehearing Granted May 19, 1921.)
    1. Criminal law <@=31081 — Notice of appeal essential to jurisdiction.
    Without notice of appeal, the Court of Criminal Appeals has no jurisdiction under provision of Yernon’s Ann. Code Cr. Proc. 1916, art. 915.
    On Motion for Rehearing.
    2. Criminal law <⅜=>195(2) — Where defendant fires at one and wounds another, state may charge assault on both or either, but judgment in one case bars prosecution in other.
    Where defendant fired at one person and wounded another, it was within the discretion of the state to charge an assault on both or either of them; but conviction or acquittal in one case would bar prosecution in the other.
    3. Homicide <@=89 (2) — Fact shot fired at one with intent to murder him wounded another no excuse.
    Where defendant fired a shot at one person, with malice, intending to kill him, the fact that it wounded another, whom he did not intend to kill, would not excuse him from liability for assault with intent to murder.
    4. Assault and battery <@=375 — Indictment for assault with intent to commit another offense need not give elements of offense intended to be committed.
    Under Const, art. 1, § 10, guaranteeing accused the right to demand the nature and cause of the accusation, in charging an assault with intent to commit another offense, it is necessary only to allege such matters as bring the offense within the definition of an assault coupled with an intention to commit such other offense, naming it, without giving the constituent elements of the offense intended to be committed.
    5. Indictment and information 174 — Principal offender may be convicted under indictment charging him directly with offense.
    A principal offender, by reason of the part performed by him in the commission of an offense, may be convicted under an indictment charging him directly with its commission.
    6. Indictment and information <@=3125(44) — Indictment may charge muraer of two or more by same act in single count.
    An indictment for murder may, in a single count, charge the murder of two or more persons by the same act.
    7. Homicide 142(10) — Under charge of assault to murder one, proof of intent to murder another is admissible.
    Under an indictment charging an assault upon M. with the intent to murder him, the state could prove that the shot which, wounded him was fired at E. with intent to murder E.; the fact that M. was the victim rendering it no less an assault with intent to murder.
    8. Homicide <@=319 — No error in overruling motion for new triad, where testimony of absent witness is contradictory.
    It was not error to overrule a motion for a new trial on the ground of newly discovered evidence, where the testimony of an absent witness as to an uncommunicated threat against defendant, made by one at whom he shot with intent to murder, was so contradictory that the court was justified in disregarding it.
    9. Homicide <@=3319 — New trial for newly discovered evidence properly denied, where defendant knew of same before trial.
    It was not error to overrule a motion for a new trial on the ground of newly discovered evidence, where an absent witness would have testified to threats against defendant by one at whom he shot with intent to murder, which were communicated to defendant; defendant having known of them before the trial.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    
      Mike Jones was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    T. D. Rowell, of Jefferson, for appellant.
    R. H. Hamilton,' Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of 10 years.

We find it necessary to sustain the motion made by the state to dismiss the appeal because of the absence of any notice of appeal. Without notice of appeal, this court has no jurisdiction. Article 915, Vernon’s Texas Criminal Statutes, vol. 2, p. 877, and cases there listed.

On Motion for Rehearing.

Appellant is convicted for assault with intent to murder; punishment fixed at confinement in the penitentiary for 10 years. The omissions in the record having been supplied, the motion for rehearing is granted, and the dismissal set aside.

The indictment charges that the appel-. lant did “make an assault in and upon Jud Mathis, with the intent then and there to murder the said Jud Mathis.” Upon the facts, the theory was presented that the shot fired by the appellant, which injured Mathis, was not fired at him, but was fired at Marion Elliott. The court instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that the appellant, with malice aforethought, fired the shot that injured Mathis with the specific intent to kill Elliott, he would be guilty of an assault with intent to murder Mathis. The correctness of the treatment of the matter is . challenged upon the ground that, the indictment having charged an assault upon Mathis, under this pleading there could be no conviction upon proof showing that the shot was fired at Elliott, against whom there was malice, and by accident striking Mathis, against whom no ill will was entertained. Apparently the law upon the subject is stated in the opinion of the court in Mathis v. State, 39 Tex. Cr. R. 552, 47 S. W. 464, thus:

“The assault is only required to be with intent to murder; that is, to murder some one. And we hold that if A. shoots at B. with intent of his malice aforethought to kill and murder B., but accidentally shoots C. and inflicts a wound upon him, that the malice is carried over to C., and that this is an assault with implied malice to murder C.”

The legal proposition thus stated finds support in several cases, among them being Richards v. State, 35 Tex. Cr. R. 43, 30 S. W. 805; Smith v. State, 95 S. W. 1058. See, also, State v. Thomas, 127 La. 576, 53 South. 868, 37 L. R. A. (N. S.) 172, Ann. Cas. 1912A, 1059; Spannell v. State, 83 Tex. Cr. R. 418, 203 S. W. 357, 2 A. L. R. 593.

The evidence goes to show that while Mathis and Elliott were walking together in the nighttime a shot was fired, taking effect upon Mathis; that Elliott fled, and two other shots were fired. Other evidence connects the appellant with the assault. The state proved his admission that he fired the shot, and by the same witness, on cross-examination, it was shown that at the same time he said that the shot was fired at Elliott, ■ and not at Mathis. Both Elliott and Mathis testified that they had had no difficulty with the appellant. Shortly before the shooting, all the parties were at the home of a negro woman of unchaste character. Appellant and a companion left first, and the shooting occurred soon after Mathis and Elliott took their departure.

The theory of an accidental shooting of Mathis was developed by the appellant. Assuming that the appellant fired at Elliott and wounded Mathis, it was within the discretion of the state to charge an assault upon both Elliott and Mathis, or upon either of them; but the conviction or acquittal in one case would bar the prosecution in the other. Spannell v. State, 83 Tex. Cr. R. 423, 203 S. W. 357, 2 A. L. R. 593. If the appellant fired the shot at Elliott with malice, intending to kill him, the fact that it wounded Mathis, whom he did not intend to kill, would not excuse him.

Appellant does not controvert the proposition last stated, but insists that, in writing the indictment, it is essential that it should contain averments setting out all facts which it is necessary that the state prove in order to sustain a conviction, referring to 22 Cyc. pp. 285-295, Hewitt v. State, 25 Tex. 722, Williams v. State, 12 Tex. App. 395, and other cases. There is a distinction between the facts that must be proved and those that may be proved under an indictment. A statement in the indictment of the facts necessary to make certain, specific, and complete description of the offense is required by the Constitution. Huntsman v. State, 12 Tex. App. 619; Hewitt v. State, 25 Tex. 722; Harris’ Texas Constitution, p. 85. It is not necessary, however, to allege matters in the nature of evidence. 22 Cyc. p. 285. An indictment for murder, charging that the accused did “then and there unlawfully and with express malice aforethought kill the deceased (naming him) by shooting him with a gun” was held in an opinion embracing a complete review of the principles and precedents, a sufficient averment in an indictment for murder. Caldwell v. State, 28 Tex. App. 576, 14 S. W. 122; Rose’s Notes, vol. 5, p. 789. In charging an assault with intent to commit another offense, it is necessary only to allege such matters as bring the offense within the definition of an assault, coupled with an intention to commit such other offense, naming it, without giving the constituent elements of the offense intended to be committed. Morris v. State, 13 Tex. App. 72.

If one be a principal offender by reason of the part performed by him in the commission of the offense, he may be convicted under an indictment charging him directly with its commission. Tuller v. State, 8 Tex. App. 506. This principle has been . given general application. Branch’s Ann. Penal Code, § 676; Dodd v. State, 83 Tex. Cr. R. 164, 201 S. W. 1014. It has often been held that an indictment for murder may, in a single count, charge one with the murder of two or more persons by the same act. Rucker v. State, 7 Tex. App. 549; Chivarrio v. State, 15 Tex. App. 334.

In the case before us, it was necessary to establish, by evidence, that the appellant made an assault upon Mathis with the intent to murder him. These constituted the elements of the offense which were set out in the indictment. To establish them it was competent that the state prove that the shot which wounded Mathis was fired by the appellant at Elliott, because by proving that the shot was fired with intent to murder Elliott the offense would be complete. Though the shot struck, not Elliott, hut Mathis, it was intended to murder; it was an assault. That Mathis was the victim of it rendered it no less an assault with intent to murder.

There was no error in overruling that phase of .the motion for a new trial referring to newly discovered evidence. One of the absent witnesses would have given testimony of an uncommunieated threat made by Elliott against the appellant. Her testimony was contradictory to a degree that the court was justified in disregarding it. The other witness would have testified to threats communicated to the appellant. All this appellant manifestly knew before the trial, and in fact the absence of knowledge on his part of all the alleged newly discovered evidence is not made clear.

The record reveals no error, and the af-firmance of the judgment must result. 
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