Appellant was convicted of an assault with intent to murder. He assigns as error the failure of the court to inform the jury in the charge that the criterion of the offense of assault with intent to murder consists in the fact that, had the killing occurred, it would have been murder. The statute provides that, where the killing would have been murder, then, falling short of a killing, the assault would be with intent to murder; but it does not follow that, because the charge failed to charge this statute, the cause should be reversed. This question came up in Wagner v. State, 35 Texas Criminal Reports, 255. The charge in that case is the same as in this. See also Hooper v. State, 29 Texas Crim. App., 614; Smith v. State, 31 Tex. Crim. 33; White v. State, 34 Tex.Crim. Rep.. In this case the court charged the jury, defining assault, aggravated assault, and malice aforethought, and applied the law to this case. The charge is as follows: "If you are satisfied from the evidence, beyond a reasonable doubt, that the defendant, Wyatt Williams, without legal justification or excuse, did, in the county of Houston and State of Texas, on or about the 1st day of September, 1895, and prior to the 9th day of October, 1895 (the date of the filing of the indictment), cut Gus Richardson with a knife, and that the knife was a deadly weapon, as above defined, and that defendant so cut said Richardson, not through sudden impulse, passion, or resentment, fear, or terror, but did so with the intent then and there to kill him, and with malice aforethought, as above explained, then you will find him guilty of an assault with intent to murder, and assess his punishment," etc. This defines all of the essential elements of an assault with intent to murder; and under numerous decisions in this State, some of which are cited above, this charge was sufficient.
The remaining error complained of is the want of sufficient evidence to support the conviction. As usual, there were two theories presented by the testimony — one a defensive, and the other a premeditated, uncalled-for stabbing of the injured party by the appellant. The theory of aggravated assault was also presented by the testimony. All of these *Page 146 phases of the testimony were fairly presented by the charge of the court. The jury passed upon the evidence and credibility of the witnesses, and found the assault was made with the specific intent to murder. If the testimony for the State be true, there is no question of the guilt of appellant. The jury settled this question, and we see no reason for disturbing their verdict. The judgment is accordingly affirmed.
Affirmed.