
    HERNANDEZ v. STATE.
    (No. 3930.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.)
    1. Homicide <&wkey;310 — Assault with an Intent-Instruction .
    Where defendant testified that merely to frighten he shot into the ground before the parties he was charged with assaulting to murder when he saw them following him, the refusal of special charges, presenting the issue that, if he did so fire without intent to kill, he was guilty of no higher offense than aggravated assault, was improper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dee. Dig. &wkey;310.]
    2. Homicide <&wkey;86 — Assault with an Intent — Specific Intent.
    The specific intent to kill is an essential element of the crime of assault to murder, unless the attack is made with such a reckless disregard of human life that the law will impute malice.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 112; Dec. Dig. &wkey;86J
    3. Criminal Law <&wkey;543 — Evidence—Testimony on Former Trial.
    In a prosecution for assault to murder, where the testimony of a witness on examining trial was reduced to writing, on trial, after the witness had gone to Mexico and was beyond the jurisdiction of the court, defendant could reproduce so much of the testimony as showed that the party he was charged with assaulting was armed with a pistol at the time and had secured cartridges from the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dee. Dig. c&wkey; 543.]
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Abundio Hernandez was convicted of assault to murder, and be appeals.
    Reversed, and cause remanded.
    Beasley, Beasley & Daugherty, of Beeville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

AVithout reciting the testimony, we will say that the evidence offered in behalf of the state would amply support the verdict ; but we think, under the decisions of this court, the evidence offered in behalf of the defendant raised the issue of aggravated assault, and it should have been submitted in the charge of the court, and on account of the failure and refusal of the court to do so it will necessitate a reversal of the case.

Appellant testified he went to a dance at Espidió Ramirez’s house. After the dance was over, he and others came down stairs into the restaurant; that while in the restaurant Jesus Ramirez put him out of the restaurant for cursing; that he started in the direction of the post office, when Espidió Ramirez and Pedro Torres followed him, and while they were engaged in conversation, he saw Jesus Ramirez and his brother approaching; that he told Espidió to send' the boys back, and he began to back off; that they did not go back, and he pulled his pistol and fired into the ground to frighten them away. To use his language as it appears in the statement of facts:

“I shot in the ground when Espidió and his two sons continued to follow me, as I thought they were going to do me some harm and I wanted to scare them away. I shot twice. I shot in the ground both times; that altogether there were nine shots fired, but the other shots, than the two shots he says he fired, were fired by others from the direction of the post office.”

Thus, according to his testimony, he fired the shots he says he fired to frighten Espidió and his boys away. In an assault to murder case there must be a specific intent to kill, or the shots fired with such a reckless disregard of human life as that the law will impute malice.

Appellant excepted to the court’s charge because of the failure to submit aggravated assault, and asked two special charges presenting the issue that, if appellant fired the shots, he fired to frighten away Ramirez and his two sons, with no intent to kill, he would be guilty of no higher grade of offense than aggravated assault. This issue should have been submitted to the jury for their determination. Thomas v. State, 60 Tex. Cr. R. 86, 131 S. W. 314; Angel v. State, 45 Tex. Cr. R. 137, 74 S. W. 553; Stevens v. State, 38 Tex. Cr. R. 550, 43 S. W. 1005.

Another matter is presented which we think necessary to pass on. Appellant’s contention is that Jesus Ramirez and his brother were approaching him under circumstances that led him to believe his life was in danger. Arturo Chapa was a witness at the examining trial, and his testimony was reduced to writing. On the trial of this ease appellant offered proof that since the examining trial Arturo Chapa had gone to Mexico and was beyond the jurisdiction of the court. Under such circumstances we think he should have been allowed to reproduce so much of the testimony as would have shown that Jesus Ramirez was armed with a pistol on that occasion, and had secured cartridges from the witness Chapa.

The newly discovered testimony need not be discussed, as it will not be newly discovered on another trial.

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent. 
      <§=»For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     