
    CANTU v. STATE.
    No. 24468.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1949.
    Rehearing Denied Jan. 4, 1950.
    None on appeal for appellant.
    George P. Blackburn, State’s Atty., of Austin, for the State.
   DAVIDSON, Judge.

The offense is assault with intent to murder, with punishment assessed at fifteen years in the penitentiary by reason of a prior conviction for assault with intent to murder, as provided by Art. 62, P.C.

Avila, the injured party, a deputy sheriff, was called to the town of La-Villa, in Hidalgo County, to investigate a disturbance there by a man reported to be “shooting up the town.” Upon the deputy sheriff’s arrival, the man was identified as the appellant. With the assistance of other peace officers, appellant, armed with a pistol, was apprehended on a public highway. Avila ordered him to drop the gun as he was arresting him. Thereupon, appellant opened fire upon Avila, none of the three shots fired taking effect. Avila then shot the appellant.

Testifying in his own behalf, appellant said that, due to the drinking of “Ha-bañera” some time before he knew nothing about what happened. He denied any enmity or ill-will toward Avila or any intent to kill him.

The facts abundantly support the verdict.

Appellant contends that the prior conviction relied upon to enhance the punishment was that of assault with intent to murder without malice, and was not an offense of the same nature as that of assault with intent to murder with malice.

Assault to murder without malice is, none the less, an assault with intent to murder; malice, or the absence of malice, in the commission of such offense, affects only the punishment.

Other matters appearing in the record cannot be considered, in the absence of bills of exception.

The judgment is affirmed.

Opinion approved by the Court.

On Appellant’s Motion for Rehearing

BEAUCHAMP, Judge.

Motion for rehearing in this case raises no question other than that discussed in the original opinion. The motion was presented by able oral argument. We have given consideration to this and have carefully reviewed the record. It appears that the original opinion disposed of all issues properly and that further discussion of the same would not be helpful.

Appellant’s motion for rehearing is overruled.  