Appellant was indicted for an aggravated assault, found guilty of a simple assault, and his punishment affixed at a fine of 1 cent.
It is insisted that the motion to quash the indictment should have been sustained. The main grounds of the motion were that the indictment did not charge that defendant presented the pistol at the assaulted party within carrying distance; that the indictment did not show how the defendant attempted to use the pistol; and that the indictment was duplicitous.
The indictment in the case of Crow v. The State, 41 Texas, 468, is very similar to the one in this case, and in that case the indictment—which was, if anything, more liable to the objection of duplicity than the one we are considering— the court held to be good, and the objection untenable ; citing The State v. Dorsett, 21 Texas, 657, and The State v. Smith, 24 Texas, 286.
In the case of Mayfield v. The State, 44 Texas, 59, it was held that it was not necessary, in an indictment for an assault with intent to murder, charged to have been made with a pistol, to allege that the party making the assault was within carrying distance of the pistol to the party assaulted; citing The State v. Rutherford, 18 Texas, 24. And in the same case of Mayfield v. The State, 44 Texas, *41159, it is further said that “ it was not necessary to have named the weapon with which the assault was committed, or the manner in which it was used;” citing Bittick v. The State, 40 Texas, 117; Martin v. The State, 40 Texas, 19; The State v. Walker, 40 Texas, 485; and Croft v. The State, 15 Texas, 571.
We see no reason why such allegations are any more essential to the validity of an indictment for an aggravated assault, when the offense is alleged to have been committed with a deadly weapon, than to one for an assault with intent to murder. The court did not err in overruling the motion to quash, the indictment being good. Browning v. The State, 2 Texas Ct. App. 47.
Another error complained of is that the court charged the jury that it was incumbent upon the defendant to show that the pistol was not loaded. This point was also made in the case of Crow v. The State, above cited, and the court says ‘ ‘ there was no error in instructing the jury that, while pointing an unloaded gun at a person would not be an assault, the burden of proving it to be unloaded was on the defendant. Caldwell v. The State, 5 Texas, 20; Whart. Cr. Law, sec. 1244. The Code does not change the rule of evidence on this point.” 41 Texas, 468; Flournoy v. The State, 16 Texas, 31.
The charge of the court presented the law applicable to the evidence, and we are of opinion that the evidence was sufficient to sustain the verdict and judgment. Pierson v. The State, 23 Texas, 581; Higginbotham v. The State, 23 Texas, 574; Bell v. The State, 29 Texas, 434.
The judgment of the lower court is affirmed.
Affirmed.