An indictment for assault with intent to murder need not allege that the assault was with malice aforethought, unless the State seeks a conviction for assault to murder upon malice aforethought. Friday v. State, 117 Tex.Crim. Rep.; Cates v. State, 118 Tex.Crim. Rep.. Such indictment need not set out the means or instrument used to effect the assault. Perez v. State, 114 Tex.Crim. Rep..
The trial court in this case, — following the mandate of section 2 of the present statute relative to assault to murder, as amended by chapter 61, acts Regular Session of 42nd Legislature, — properly charged on malice aforethought, but the jury, as they had a right to do, found appellant guilty of assault to murder without malice. The court's charge also submitted the issue as to whether there was in appellant's mind a specific intent to kill at the time of such assault, which is one of the necessary elements of assault to murder. Mrs. Adams, the assaulted party, swore positively that appellant cut her with a knife. The *Page 253 wounds inflicted took forty-three stitches to sew up, and were characterized by Dr. Moore as dangerous.
The motion for rehearing will be overruled.
Overruled.