
    SALISBURY v. STATE.
    (No. 6514.)
    (Court of Criminal Appeals of Texas.
    Dec. 14, 1921.)
    1. Assault and battery <&wkey;>49 — Homicide &wkey;>9 —Intent to kill unnecessary to warrant conviction of assault.
    Where accused shot at an automobile and seriously injured an occupant, it was not necessary for accused to have entertained the specific intent to kill in order to make him guilty of assault, as one who shoots wantonly and recklessly into a car or building known to him to be occupied need not have the specific intent to kill any particular person in order to make him guilty of murder.
    2. Assault and battery &wkey;>54 — One shooting at an automobile to scare may be guilty of aggravated assault.
    One who shot into the back of an automobile to scare, and not to kill, may be guilty of an aggravated assault, under Vernon’s Ann. Pen. Code 1916, art. 1013, subd. 3.
    3. Assault and battery <&wkey;92 — Evidence held to sustain verdict of guilty of aggravated assault.
    In a prosecution for assault with intent to kill, where accused shot into an automobile with a Winchester rifle severely injuring an occupant thereof, without any apparent excuse, facts held to justify verdict of guilt of aggravated assault.
    4.Assault and battery &wkey;>95 — Guilt of aggravated assault held for jury.
    Where accused shot into an automobile, whether accused, convicted of aggravated assault, shot only for the purpose of striking a tire and stopping the vehicle, held for the jury.
    Appeal from District Court, Clay County; H. F. Weldon, Judge.
    L. C. Salisbury was convicted of aggravated assault, and appeals.
    Affirmed.
    C. M. McFarland, of Wichita Falls, and Taylor, Allen, Muse & Taylor, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Clay county of aggravated assault, and his punishment fixed at a fine of $450.

Appellant was upon trial for an assault to murder and was convicted as above stated, and upon his appeal presents but one question which appears as follows: Appellant was a tenant, and upon some part of the premises an oil well was in process of drilling, and a gate near appellant’s house was being commonly used by the persons connected with such oil well. The use of said gate for such passage appears to have been entirely acceptable to appellant until about the time of this occurrence; it appearing that on the afternoon before the shooting in question some women going through said gate had used language to appellant’s wife which she regarded as insulting, upon which he instructed “the boys” that when they came through the gate they must let him see who they were, or something to that effect. On the night in question a young man named Gill with some companions were driving.in a car and passed through said gate, appellant being upon the porch of his house a short distance away. The party did not go to appellant’s house or communicate with him in any way, and as they drove their car away from said gate after passing through appellant fired at said car with a Winchester rifle, the bullet striking young Gill inflicting upon him injuries which confined him in a hospital for over two months. Under these facts and on the trial appellant asked two special charges,, the refusal of which is practically the only ground of this appeal, and which charges are as follows:

“Gentlemen of the jury, you are instructed that, if you find and believe from the testimony in this case that the defendant, Salisbury, at the time that he fired the shot in question, did not shoot the prosecuting witness Gill with the specific intent to kill or injure the prosecuting witness, Gill, but that the defendant'fired said shot for the purpose of stopping the automobile in which the said Gill and other parties were riding, or in case of reasonable doubt, then you will acquit the defendant, and so say by your verdict.
“C. M. McFarland and R. E. Taylor.”
“Gentlemen of the jury, in this case you are instructed that the burden of the proof is upon the state of Texas to prove beyond a reasonable doubt that the defendant shot the prosecuting witness, Gill, with the specific intent to kill said Gill, and, if you have a reasonable doubt as to such specific intent upon the part of the defendant at the time ho fired said shot, then you will acquit said defendant and say so by your verdict.
“C. M. McFarland and R. E. Taylor.”

We are unable to find any error in the refusal of either of said, charges. In Thompson v. State, 30 S. W. 667, this court held that error in a charge on the intent to kill would not be reversible when the conviction was only for aggravated assault.

It was not necessary under any rule known to us for appellant to have entertained the specific intent to kill Gill, in order to make him guilty of an assault. One who shoots wantonly and recklessly into a car or building known to him to be occupied need not have the specific intent to kill any particular person in order to make him guilty of murder. Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159; Holland v. State, 55 Tex. Cr. R. 27, 115 S. W. 48. The lack of such specific intent to kill would not have justified appellant to such an extent as to require his acquittal, and said special charges above, being predicated on this erroneous assumption, were properly refused. Appellant cites many authorities wherein the theory of shooting to scare arose and was not submitted. In such ease, even though the jury believed the appellant only shot to scare, and not to kill, he would nevertheless be guilty of an assault under the authorities submitted and under the third subdivision of article 1013, Yerhon’s P. C.; Smith v. State, 57 S. W. 949; Catling v. State, 72 S. W. 853; Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699.

We think the facts in the case justify the verdict. The state’s case made out an unprovoked wanton shooting into a car occupied by several persons without any apparent excuse at all save that the appellant did not like their act in driving off without coming by his house. Appellant admitted that he shot with the Winchester rifle, but denied any intent to injure, claiming that he only shot for the purpose of striking a tire and stopping said vehicle. The question was one of fact for the jury, and they have decided same against the contention of appellant. The act of appellant appeared so reckless and in such utter disregard of the reasonable probabilities of the consequence of such shooting as that the jury might have convicted him of a graver offense, and we think him without just ground of complaint at his conviction of an aggravated assault.

The judgment will be affirmed. 
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