
    McINTIRE v. STATE.
    (No. 10267.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1926.)
    1. Homicide <§=>142(9) — Proof that defendant shot at and missed prosecuting witness held not at variance with indictment alleging shooting of witness.
    Evidence in prosecution for assault with intent to murder, to effect that defendant shot at, but missed, prosecuting witness, field) not to constitute such variance with indictment, alleging that- defendant shot prosecuting witness, as to entitle defendant to charge of acquittal.
    2. Homicide <§=>310(1) — Charge authorizing conviction only of aggravated assault, if victim’s acts enraged defendant, held properly refused.
    Refusal, in prosecution for assault with intent to- murder, to charge that defendant could not be convicted of more than aggravated assault, if all facts produced in defendant’s mind certain degree of anger, held proper, as not limiting facts producing passion to person of ordinary temper.
    Commissioners’ Decision.
    > Appeal from District Court, Erath County; J. B. Keith, Judge.
    Will Mclntire was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Oxford & Johnson, of Stephenville, for appellant.
    
      Sam D. Stinson, State’s .Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groeslieck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Erath county of assault with intent to murder, and his punishment assessed at four years in the penitentiary.

The indictment charges the appellant with an assault with intent to murder A. W. Burch, “by then and there shooting the said A. W. Burch with a shotgun.” Briefly stated, the record discloses that the appellant’s bull had broken into the field of the prosecuting witness, Burch, and that Burch, in a conversation ofev the telephone, requested the appellant to get said bull and keep him out of his field. The appellant became offended at Burch’s manner of speaking and his tone of voice, and when Burch, a short time thereafter, traveled through the premises of the appellant over a road sometimes used by the neighbors, the appellant told him to stay'Off his (appellant’s) premises, which Burch agreed to do. On the following morning Burch and his grown son were seen by the appellant approaching appellant’s premises over said road in an automobile. The appellant secured his shotgun and shot at Burch, the charge striking and shattering the windshield of the car and driving glass into the face of the prosecuting witness. However, the prosecuting witness was not struck by any of the shot. The appellant and his brother then intercepted the prosecuting witness and his son and caused them to turn back and leave the premises. It was the contention of the state that the assault was without cause or provocation, and the appellant defended upon the ground that the prosecuting witness was a trespasser, and that immediately prior to the shooting the prosecuting witness and his son were reaching down in the car, and from their acts and the circumstances he (appellant) was of the opinion that they were .preparing to shoot him, and that he shot in self-defense.

The appellant contends that the court erred in failing to sustain his contention to the effect that, the indictment having alleged that the appellant shot the prosecuting witness, Burch, and the undisputed evidence being to the effect that he shot at, but missed, said prosecuting witness, same constituted such a variance between the allegation and the proof as to entitle appellant to a charge of acquittal, and that the court erred in submitting to the jury the law of assault to murder and aggravated assault. We are unable to agree with the appellant’s contention in this instance, and think the case of Carr v. State, 41 Tex. 543, opinion by Chief Justice Roberts, is against the appellant on this issue. The indictment in that case charged the appellant with having shot John Dickson with a pistol with intent to murder him, and the evidence showed that Carr shot at Dickson and missed him. Judge Roberts, in affirming the case, stated:

“Therefore the act of shooting Dickson, as alleged, includes the act of assaulting him, as proved.”

Also see Peterson v. State, 12 Tex. App. 650.

The appellant complains in bill of exceptions No. 3 of the refusal of the court to give in charge to the jury his special charge No. 2, which, in effect, combined all the facts in the ease and instructed the jury that, if same produced in the mind of the appellant such a degree of anger, rage, etc., that he could not be convicted of a higher offense than aggravated assault. The vice in this charge is that it limited the facts producing the passion and adequate cause to the mind of the appellant, instead of that of a person of ordinary temper, and there was no error in the court’s refusal of same. Hurst v. State, 40 Tex. Cr. R, 378, 46 S. W. 635, 50 S. W. 719.

Finding no error in the record, we are of the opinion that the judgment of the trial court should be affirmed; and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      <@=3For other oases see same topic and KEY-NUMBiSR in all Key-Numbered Digests and Indexes
     