
    SIMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 24, 1912.)
    1. Criminal Law (§ 1122) —Appeal — Instructions — Absence oe Evidence.
    Without a statement of facts containing the evidence, the Court of Criminal Appeals cannot review an objection to the charge that it failed to apply the law of aggravated assault and battery, alleged to have been raised by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    2. Homicide (§ 307) — Assault to Murder-Instructions — Degrees oe Murder.
    Where the court defined malice aforethought, and accused was convicted of assault with intent to murder, an objection that the charge did not define murder in the second degree was not sustainable; it not being usually necessary, in a prosecution for assault with intent to murder, to distinguish between the degrees of murder in the charge.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    3. Homicide (§ 286) — Murder —Malice Aeorethought.
    In a prosecution for murder of either degree, a general definition of malice aforethought is usually sufficient.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dee. Dig. § 286.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Bird Simmons was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Without the statement of facts before us, we are unable to review the questions presented for revision. The charge is attacked in several respects.

Among other criticisms of the charge is that it fails to apply the law of aggravated assault and battery, inasmuch as that issue was distinctly raised by the evidence. ' Without the evidence, we. are unable to review this question.

The charge is also attacked because it does not define murder in the second degree. This conviction was for assault with intent to murder. The court gave the definition of malice aforethought, and of this there is no complaint. In an assault with intent to murder, usually it is not necessary to draw the distinction between the two degrees of murder in the charge.

If the offense would have been murder of either degree, in case of the homicide, a general definition of malice aforethought is usually sufficient. Had the trouble resulted in a killing, and conviction would have been had for either degree of murder, the general definition of malice aforethought is sufficient. In the absence of the facts, the charge will be held sufficient.

The judgment is affirmed.  