
    GRAY v. STATE.
    (No. 4368.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Homicide <&wkey;310(4) — Assault with Intent to Mukdeb — Instruction—Provocation.
    In a prosecution for assault to murder, where defendant claimed that the'assaulted party made an insulting remark Saturday night in the presence of defendant and his fiancée, but the assault was not committed until Sunday night, 24 hours later, a charge on aggravated assault was properly refused,
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 660.]
    Appeal from District' Court, Hill County; Horton B. Porter, Judge.
    Ed Gray was convicted of assault to murder, and he appeals.
    Affirmed.
    George W. Dupree, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The only question presented is whether the court erred in not charging the law in regard to aggravated assault and battery. The facts pertaining to this question may be briefly stated as follows: On Saturday night the alleged assaulted party, as claimed by appellant, stated in the presence of his sweetheart, who was then under his protection, to whom he was engaged to be married, that his kidneys were hurting him very much and he would have to lie down. Appellant protested against such language in the presence of his sweetheart and some other lady who was present, and that Rose, the assaulted party, used some vigorous language, indicating that he did not care whether they liked to hear what he said or not. Rose, the assaulted party, did not agree, nor did any of the others, with appellant upon this statement; but, take the appellant’s statement as the criterion upon which the charge should be predicated, was he entitled to have the question presented in the charge? However, taking any view of it, was appellant entitled to a charge on aggravated assault? If the question of aggravated assault was in the case, it is by reason of insulting conduct to the young lady on Saturday night, while really or qualifiedly under the protection of appellant. Appellant was present, and heard and witnessed all that occurred. There was nothing done, further than an expostulation on his part. The following Sunday evening, in the neighborhood of 24 hours later, he went to where Rose, the assaulted party, was at a nearby schoolhouse. He took his pistol with him, and called Rose to account for it, and shot him; the ball entering near or close to the left eye, and passing out near the back of fhe neck.

If aggravated assault is in the case, it is by reason of the insulting, conduct claimed by appellant to have occurred on Saturday night. In order to constitute this cause for sudden passion, appellant should have acted at the time he heard it. The question of his acting as soon as he met the injured party after being informed of the insult does not apply in this case. He was present at the time and heard what occurred. Under the statute, he was then called on to act in order to get the'benefit of the' sudden passion arising from the cause stated. It was too' late to’ wait 24' hours and' then seek the injured párty and shoot him. The question of cooling time does not arise; so that a charge on aggravated assault could be given from that viewpoint. We are of opinion that the court was not in error, in. failing to- charge the law of aggravated assault.

There being no other' question in the record; the judgment'will he affirmed. 
      ffinsfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     