Counsel for the appellant very earnestly insists that the essential element of an assault with intent to murder, namely, a specific intent to kill, is wanting in the present record. It is true, as stated in the original opinion, that if the specific intent existed and was accompanied with some assault, the verdict might be sustained though there was a subsequent abandonment of the intent. See Watts v. State, 30 Tex. Cr. App. 533.
The night preceding the assault was spent by Doss Moor at the home of the appellant. The appellant's wife claimed that Moor had insulted her and so told her husband. In the afternoon following, Graves, Dufner, Moor and Hawkins, traveling in an automobile, went to the home of Moor, a distance of some fifteen miles. From the State's witness, Roy Graves, the following appears: Moor entered his house and the appellant followed him. While in the house the appellant hit Moor with his fist. Hawkins was demanding that Moor look for a ring. In many places in the record it appears that Hawkins was claiming that Moor had stolen his ring and was demanding that Moor produce it. The witness saw no weapon used by the appellant save his fist. Dufner and Graves left the scene while Hawkins, Moor and Lee Bob Smith went into Moor's house.
Dufner testified in behalf of the State, and his testimony coincides with that of Graves, showing in addition thereto, that with one of the blows Moor was knocked against the window and the glass broken out. Both of the witnesses indicated that Smith prevented interference by them. Moor testified that after he was beaten in the house the appellant, using his fist, also a screw-driver, took him out to a tree. Describing the encounter there, he said:
"I did not see any weapons there. I saw an axe out at the tree. Hawkins picked up the axe and cut off a limb of the tree."
It appears from the testimony that Moor had named several places at which the ring had been hidden. Among them was a limb of a tree in the yard, which limb was cut off but the ring was not found. In his redirect examination, Moor said:
"Stanley Hawkins struck me in the side with that axe. He struck me in the side with the back of that axe. After that I did not know nothing for about thirty minutes."
There was no testimony that the wound upon Moor could not have been made with the fist; nor is there any cogent testimony indicating that any of the wounds upon his body were made with the *Page 167 axe or with a heavy screw-driver. Manifestly, none of the witnesses indicated that either an axe or a heavy screw-driver had been used as a deadly weapon. Such instruments are not necessarily deadly weapons but may be deadly weapons in the manner of their use. There was one wound in the back of the head of Moor, of which the doctor said:
"The only place where I found the skin broken through was on the back of his head — back of his ear where the skin was broken loose."
He said further:
"There were no other bruises noticed on any other portion of his body. His face had been beaten severely, and the skin had been lacerated from his face and head, from his neck up."
Lee Bob Smith was called as a witness for the defendant. He heard Hawkins demand a ring and also demand knowledge of the location of the ring. He heard the appellant say: "I will pull your eyes out. I want my ring." He also heard Moor say that his nephew had put the ring in the hollow of an old oak tree. Moor was conducted to the tree. The witness got an axe and cut off the limb indicated but the ring was not found. Moor then indicated that the ring was in a match box in the kitchen. After searching the match box in the kitchen and failing to find the ring, the witness said to Hawkins: "Let's go." Hawkins replied: "I guess I might as well. He's going to let me kill him before he will tell me where the ring is." Moor then said that he wanted to lie down. He was taken to a bed or cot by Hawkins and Smith. Blood was wiped from his face by Hawkins. A drink of water was given him and a bucket of water was placed beside him. He also requested that his mother be told of his plight. Hawkins agreed to tell her and also agreed to get her to come out. The witness Smith said he saw no screw-driver and saw no weapon used except the fist of Hawkins.
The appellant testified and denied the assault save with his fist.
The sheriff arrived and found an axe near a tree from which a limb had been cut. There was no testimony of the finding of a screw-driver such as that mentioned by the accused or of any other description. Touching any reason for not using the axe as a deadly weapon the record is silent. Nor does it reveal why the screwdriver (if one was present) was not used in a deadly manner. No reason is shown by the evidence for leaving Moor alive other than the volition of the accused. No circumstances are revealed making flight necessary or expedient. Hawkins and his companion Smith *Page 168 were alone in a remote place with ample means at hand to kill Moor, who was practically helpless. The record reveals conduct of the accused for which he richly merits such punishment as the law authorizes. To warrant his punishment, however, the facts must bring his offense within the purview of the specific crime with which he is charged. Punishment for a crime with which he is not charged cannot be sanctioned under our law. Viewing the evidence in its entirety, we are constrained to declare that, in our opinion, the evidence does not warrant the conclusion, beyond a reasonable doubt, that the accused in any part of the assault, acted with the specific intent to kill Doss Moor.
The appellant's motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.