
    LEIGH v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1912.)
    1. Homicide (§ 86) — Assault with Intent to Murder — Essentials.
    Eor an assault to be one to murder, there must be a specific intent to take life.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 112; Dec. Dig. §• 86.]
    2. Homicide (§ 310) — Trial—Instructions.
    In a prosecution for assault to murder, where accused denied any intent to kill, and it appeared that, though accused was in a position to fire the fatal shot, he fired but one shot, which he claimed was an accident, an instruction on aggravated assault was improperly refused, for the question of accused’s intent is one for the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    James Leigh was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    Henry Faulk, of Austin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases 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, aDd given 10 years’ confinement in the penitentiary.

The facts show: That he was the stepfather of the girl upon whom the assault was made. That on the day of the assault appellant went to the residence of his sister-in-law, where the assaulted girl was then residing or visiting, and told her that her mother had sent for her. She says she did not want to go, and her aunt suggested to appellant that he go without her; but finally her aunt told her to go, or she did agree to go, and at her suggestion or request her aunt let her daughter accompany her with defendant, and the three went away together. Instead of going home, they went to the river, and went under a bridge known as “Abe Street Bridge.” They remained there a little while, and at appellant’s suggestion went further down the river. The other girl did not accompany them, but remained up on the hill or bank of the river. After reaching a certain point, appellant and the assaulted girl, Jessie Nighten, sat down, and a conversation occurred in which he asked her if she had told her mother what had occurred between herself and him, appellant. This she denied, and he insisted that she had told her mother, and that it was known. What had occurred between the parties heretofore seems to have been sexual intercourse. While they were sitting upon the ground, he caught the bottom of her dress, and she pushed his hand away and got up; appellant firing one shot, which took effect in the fleshy part of the leg just below the knee. Appellant said that it was an accident, and that in shooting he did not intend to kill her. There was nothing intervening to prevent him shooting her. She says, after the shot was fired, he asked her what she was going to do about it. This is practically the case, at least in substance.

Appellant insists the court erred in not charging the law of aggravated assault. We are of opinion this contention should be sustained. The assault, under the circumstances of this case, could be aggravated, depending upon the intent with which the shot was fired. An assault, all other facts concurring, in order to be for the purpose of killing, must be accompanied by the specific intent to take life. The girl’s testimony does not show with what intent the shot was fired, further than what has been stated. There was but one shot fired, and she does not testify to facts which exclude aggravated assault. He could have fired four other shots, as there were that number of loads in his pistol when arrested a few moments afterwards by the officer. One of the chambers bad been discharged. Wherever there may be one or more intents or purposes growing out of a transaction, that most favorable to the defendant must be given in charge to the jury, whatever the court may think of appellant’s evidence. It is not the court’s province to solve those questions. It is a matter of fact, to be determined by the jury under appropriate instructions. Appellant said that the shot was accidental; but he further testified that he had no purpose of killing the girl, and was not even mad with her. Under the facts, we are of opinion that the court should have charged the law of aggravated assault. The verdict of the jury was heavy, amounting to 10 years. What the verdict would have been, or might have been, would be speculative, had a charge on aggravated assault been given. Its omission clearly indicated that the court did not believe the defendant’s testimony, and therefore the issue was not in the case.

The judgment is reversed, and the cause is remanded.  