
    BRAILAFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Criminal Law (§ 723) — Trial—Improper Argument.
    A statement by the district attorney that, if the jury did not convict accused for this offense, “you will see that you will have to try him for a higher offense in the near future; the way to stop this is to send the defendant to the penitentiary” — was improper and calculated to prejudice accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. § 723.]
    2. Criminal Law (§ 699) — Triai>-Improper Argument — Action in Trial Court.
    The trial court in criminal cases has authority to and should prohibit improper argument by the district attorney not based on the evidence.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1655, 1656; Dec. Dig. § 699.]
    
      3. Homicide (§ 310) — Instructions — Assault with Intent to Mubdeb.
    The court instructed that if accused unlawfully and with malice aforethought made an assault upon T. and shot him with the intent to kill, but at the time his intent was to shoot and kill G., but he shot T. by mistake, the jury should find accused guilty of assault with intent to murder. Held, that the charge was erroneous; accused having been charged in the indictment with shooting at T. and not at G.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    4. Homicide (§ 310) — Instructions — Manslaughter^-Applicabilitx- to Evidence.
    Where it appeared that G. had snapped a pistol in accused’s face and shot at him several times as he ran away, whereupon accused procured a gun and a few minutes thereafter saw persons whom he believed to be G. and his relative and fired at the one he thought was G., but hit the other, who was in fact T., an instruction that if accused shot at T., thinking he was shooting at G., he would be guilty of assault to murder was erroneous for not submitting the issue of accused’s state of mind when he shot at T., viewed in the light of his mistake in believing he was shooting at G., since the evidence as to the mistake might have authorized a verdict of manslaughter if T. had been killed, requiring an instruction as to aggravated assault.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 316.]
    5. Homicide (§ 310) — Instbuctions—Aggea-vated Assault.
    Under the circumstances, the court should have charged upon aggravated assault.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Hoy Brailaford was convicted of assault to murder, and appeals.
    Reversed and remanded.
    Forse & Wigley, of Newton, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Deo. Dig. & Am. .Dig. Key-No. Series & Rep’r Indexes
    
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant 'was convicted of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

The first bill of exceptions complains of the following remarks of the district attorney: “Gentlemen of the jury, if you don’t convict this defendant for this offense, you you will see you will have to try him for a higher offense in the near future; the way to stop this is to send this defendant to the penitentiary.” Objection was urged to this because there was no evidence that appellant was charged with any other offense, and such remarks were calculated to prejudice him before the jury. The above remarks, were not justified or called for and were erroneous. We have frequently expressed the hope that counsel would not jeopardize convictions by intemperate remarks and such arguments as are not to be justified under the law and the facts.

This court ought not to be called on to reverse on such matters. Trial courts ought not to permit such performances. They have authority to do so and should exercise that authority, and, if necessary, plenarily.

The court gave the following charge, to which exception was reserved: “If .you believe from the evidence beyond a reasonable doubt that the defendant Hoy Braila-ford in the county of Newton and state of Texas on or about the time charged in the indictment with a deadly weapon did unlawfully with malice aforethought make an assault in and upon Hamp Thomas and did shoot the said Hamp Thomas with a gun within carrying distance with intent to kill, and at the time he shot, if he did shoot, his intent, if any, was to shoot and kill Sam Gatling, but by mistake he shot, if he did shoot, one 1-Iamp Thomas, then you will find the defendant guilty of assault with intent to murder and assess his punishment,” etc. We are of opinion this charge is wrong. Appellant was not charged with shooting at Sam Gatling but shooting at Hamp Thomas.

It is further objected that the charge failed to instruct the jury that, had death resulted from the alleged shooting and it had been manslaughter, then the jury would consider the offense of aggravated assault, and it was the duty of the court to charge upon aggravated assault under the evidence in this case. Appellant had had a previous difficulty with the Gatling boys a few moments before shooting at 1-Iamp Thomas. Sam Gatling had snapped a pistol in his face a time or two, which caused appellant to flee, and as he ran away Gatling shot at him two or three times. Appellant secured a gun, which was loaded with bird shot, and passing along the road he saw two parties whom he believed to be the Gatlings and fired at the one he thought to be Sam Gatling. The distance between the parties was 34 yards. This occurred at night. The gun was loaded with bird shot. Several of the shot struck Thomas, but there seems to have been no serious injury. If appellant shot at Thomas, thinking it was Sam Gatling, under the circumstances, had he killed Sam Gatling, the offense might not be higher than manslaughter; at least it would have been a serious issue in the case. Gatling had just snapped his pistol at him and had fired at him as he ran away. This certainly constituted, on the part of Gatling, an aggravated assault, if not an assault with intent to murder appellant. If, a few minutes afterwards, he met Sam Gatling and his mind had not cooled and he had shot Sam Gatling, manslaughter would have been a very serious question in the case and one that would require a submission of that issue to the jury. Prom this standpoint the charge quoted above is erroneous, wherein the court charged the jury that if appellant shot at Hamp Thomas, thinking he was shooting at Sam Gatling, he would be guilty of assault to murder. This was settling the question adversely to appellant without any reference as to what the jury might think as to the condition of appellant’s mind at the time he shot at Hamp Thomas, thinking it was Sam Gatling. Had it been Sam Gatling, as appellant says he believed it was at the time he shot, the issue of manslaughter would have been prominent and would have required a charge on the part of the court. If it had been no higher ofíense than manslaughter as to Sam Gatling, a homicide not following, the issue of aggravated assault was in the ease and he could not be guilty of any higher grade of culpability in shooting Hamp Thomas, under the circumstances, than he would have been had he in fact shot Sam Gatling. The doctrine of mistake also enters this phase of the case and required the court to charge upon aggravated assault.

This charge as given was clearly erroneous ; and the further error is noted in this connection that the court failed to charge upon aggravated assault. This was also erroneous. In this connection, in view of the charge, the court should have submitted the issue of the condition of defendant’s mind at the time he shot at Thomas, viewed in the light of his mistake in believing he was shooting at Sam Gatling.

For the errors indicated, the judgment is reversed, and the cause /is remanded.  