A sufficient appeal bond having been filed, the appeal is reinstated and the cause considered on its merits.
It is alleged in the indictment that appellant "did then and there unlawfully in and upon J. G. White make an assault with the intent then and there to murder the said J. G. White." Appellant moved to quash the indictment on the ground that it was fatally defective in failing *Page 39 to allege that the assault was "made with malice aforethought." The motion was properly overruled. The offense of assault with intent to murder is defined in article 1160, Penal Code, as follows:
"If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than 2 nor more than 15 years."
In Tucker v. State, 26 S.W.2d 638, it was held that under the present law a person may be convicted of an assault with intent to murder and sent to the penitentiary for a term of years when there is no specific requirement in the charge of the court that the jury must find as a necessary fact that the commission of the offense was upon malice aforethought. In the case of Paul King v. State, 117 Tex.Crim. Rep., 36 S.W.2d 490, delivered February 25, 1931, it was held that malice aforethought is not now a necessary element in assault to murder cases. Stated in another way, it was the holding of the court that it is not necessary to use "malice aforethought" in the indictment for assault to murder, or to define or submit said words upon the trial of an assault to murder case.
It was uncontroverted that appellant shot J. G. White with a pistol and seriously injured him. According to the testimony of the state, the injured party was sitting on a bench in front of a meat market when appellant approached him with a pistol and said: "If you have anything to say, tell your story you d-d s-of-a-b-. I am going to kill you." White replied: "What the devil is the matter with you s-of-a-b-, are you crazy?" Appellant said: "By G- you heard what I said." He then shot the injured party, who grabbed him and tried to take the pistol from him. A scuffle ensued. Finally an officer approached and disarmed appellant. Appellant testified, in substance, that J. G. White had wrecked his home; that his wife had told him that White had had sexual intercourse with her in a room over the bank; that upon his first meeting with White after learning of his conduct toward his wife he shot him because he had ruined his home. Touching his condition of mind at the time he fired upon the injured party, appellant said: "When I heard Jim White's voice, it gave me an ague, and I just couldn't stand it and I walked to the door and 'seen' him and I walked and got my gun and shot him — it was more burden than I could stand." Several witnesses for appellant testified that they had seen J. G. White and appellant's wife together in the bank building appellant referred to in his testimony.
Appellant's application for a continuance was predicated upon the absence of his wife, it being alleged that she would testify, if present, that J. G. White had been having sexual intercourse with her for several months prior to the difficulty in which her husband shot him, and that she had advised her husband of their illicit relations on the day appellant assaulted the injured party. The application was properly overruled. Appellant admitted that he intended to kill the injured party, and testified *Page 40 that his mind was in such condition as to be incapable of cool reflection because of the fact that he had learned from his wife that the injured party had ruined his home. Under the holdings of this court it was not incumbent upon the state to prove that appellant acted upon his malice aforethought in order to sustain a conviction for assault with intent to murder, provided the assault was made with the intent to kill. Paul King v. State, supra. The absent testimony would have shed no light upon any issue, but would merely have tended to show an absence of malice aforethought at the time appellant made the assault.
Appellant objected to the charge of the court on several grounds, among them being that the court failed to define "malice aforethought," and instruct the jury to acquit appellant of assault with intent to murder if they had a reasonable doubt as to whether he acted upon his malice aforethought. Another objection was that the court omitted from the charge an instruction covering the law of aggravated assault. Again, reference is made to Paul King v. State, supra. Giving effect to the holding of this court, we must hold that the exceptions were not well taken.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.