ON APPELLANTS MOTION FOR REHEARING.
DAVIDSON, Judge.Appellant insists that Phillips v. State, 143 S. W. (2d) 591, 140 Tex. Cr. R. 84, does not authorize holding the instant indictment sufficient.
If the word, “rock,” as it appears in the indictment in the Phillips case, be substituted for the word, “pistol,” as used in the instant indictment, we would have an indictment in all essentials as here presented.
The statement, or confession, the receipt in evidence of which appellant complains, was the ex parte affidavit of appellant made before the county attorney. It did not, upon its face, purport to be a confession made while under arrest.
The bill of exception certifies that appellant was not under arrest at the time he made the affidavit. The statement was therefore available to be used by the state in evidence.
In our original opinion it is stated that the conviction was for the offense of maiming. The conviction was for the offense of assault with intent to maim, under an indictment charging the offense of maiming.
Appellant’s motion for rehearing is overruled.
Opinion approved by the Court.