Conviction for aggravated assault; punishment, a fine of $200.
Appellant was on trial charged with assault to murder. There was in the indictment no allegation as to the manner or means by which the assault was committed. Since by the terms of article 695, C. C. P., an assault to murder includes all assaults of an inferior degree, it was proper for the court to submit aggravated assault upon any phase of that offense in harmony with the facts. It appearing that appellant shot Mrs. Panick with a pistol, the bullet going through one arm and entering the other hand, — and there being no question but that said pistol was used as a firearm, there would seem little, if any, need for any attempted definition of a “deadly weapon”. However, the court told the jury that a loaded pistol was a deadly weapon as that term was used in the charge, which statement was excepted to, but no special charge was asked attempting to correct the error, if any. As an abstract proposition, the above was clearly erroneous. A pistol might have in it all the loads its cylinder or chambers could carry and yet be ineffective as a firearm for various reasons or defects. However, as stated above, there was apparently no need for any definition of said term, and under the facts of this case we regard the error as harmless. The pistol used by appellant was not only loaded but fired repeatedly at the car in which Mrs. Panick was, — one shot taking effect in her body as stated. It thus appearing without dispute that the pistol, in the manner of its use, was calculated to inflict death or serious bodily injury, we fail to perceive possible injury from the definition given. Jackson v. State, 90 Texas Crim. Rep., 369, 235 S. W., 882; Juley v. State, 45 Texas Crim. Rep., 391, 76 S. W., *36468; Kosmoroski v. State, 59 Texas Crim. Rep., 296, 127 S. W., 1056.
Appellant claimed that he shot at the tires of the car occupied by Mrs. Panick in order to stop the car, acting under the belief that his house had been burglarized by some unknown person whom he said he thought was trying to get away in said car. His rights under this theory were fully submitted as a defense against both assault to murder and aggravated assault. The court below told the jury that one had the right to kill to prevent burglary or theft at night, and if they found that appellant believed his house had been burglarized, or his property had been taken therefrom, and believed Mrs. Panick to be the person who had committed either or both of said offenses, and that he used proper care to ascertain whether said house had been entered, or his property taken, and to ascertain whether Mrs. Panick had committed either or both of said offenses, — or if jury had a reasonable doubt thereof, then regardless of whether said offenses or either of them had been committed, and regardless of whether Mrs. Panick had or had not committed either or both of said offenses,- — -they should acquit appellant of both assault to murder and of aggravated assault. This charge seems to have been prepared in line with Joy v. State, 57 Texas Crim. Rep., 103, 123 S. W., 584. The jury evidently declined to accept this defensive theory. We think the court’s charge presenting same rendered unnecessary the two special charges asked by appellant on the same point.
Appellant further complains because the trial court refused to submit simple assault. In our opinion this was correct. True, the last paragraph of article 1141, P. C., makes the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, an assault, and this court has construed this to constitute but a simple assault. Cases so holding are collated by Mr. Branch in section 1537 of his Annotated P. C. See Ivory v. State, 48 Texas Crim. Rep., 279, 87 S. W., 696; Haygood v. State, 51 Texas Crim. Rep., 618. But we must not lose sight of the fact that article 1147, P. C., provides that an assault or battery becomes aggravated “when (subdiv. 8) committed with deadly weapons under circumstances not amounting to an intent to murder or maim.” The facts of any case must be given controlling weight in determining what the offense committed actually is. Nothing in this record supports any idea that the purpose of this appellant was merely to alarm or frighten the occupant or occupants of said car, save an expression used by him in his testimony wherein he said that he shot to scare them to stop. Appellant shot to injure the car, to puncture its tires, and thus stop the car and prevent the escape of the occupant. He stated this fact time and time again both directly and indirectly. His bullets hit the woman, making out a complete battery. He used a pistol as a firearm, same thus being a deadly weapon. The jury by their verdict have said *37that he had no right to use it for the purpose claimed by him. Being a deadly weapon under all our authorities, the assault committed was necessarily an aggravated assault or an assault to murder or maim. We cannot comprehend how one on trial for assault to murder who says that he aimed at the leg or foot of the injured party, or shot at his hat or his arm, — but only intended to scare such party, would be entitled to a charge on simple assault. We think the trial court correctly refused to submit such issue.
There are no bills of exception in the record, the only complaints being of the charge and the refusal of special charges.
Finding no error in the record, the judgment will be affirmed.
Affirmed.