Zamora v. State

on appellant’s motion for rehearing.

WOODLEY, Judge.

Appellant now urges that the trial court erred in overruling his objection to the charge for failure to submit the issue of simple assault and cites Roddy v. State, 136 Tex. Cr. R. 496, 126 S.W. 2d 669, and Crowley v. State, 146 Tex. Cr. R. 269, 174 S.W. 2d 321.

In the Crowley case Art. 1141 P.C. Sec. 3 was quoted, and it was held that one who unlawfully shoots a gun with intent to alarm or scare another is guilty of simple assault in the absence of an intent to injure, even though it is made with a deadly weapon, where no injury is inflicted. The conviction was reversed *88for failure of the trial court to charge on the issue of simple assault under the rule stated. Roddy v. State reaches a similar conclusion.

The trial court in the instant case submitted the issue raised by appellant’s testimony that he shot the pistol into the air to stop Meyers from running away and instructed the jury that if they so found, or had a reasonable doubt thereof, to acquit appellant. This was more than appellant was entitled to under the authorities cited. Under the provisions of Art. 666 C.C.P., the error not being calculated to injure the rights of appellant and he not having been deprived of a fair and impartial trial, reversal of the conviction is not called for.

We remain convinced that the appeal was correctly disposed of on original submission.

Appellant’s motion for rehearing is overruled.

Opinion approved by the Court.