The appellant was indicted for an assault with intent to murder one Julius Johnson. At the fall term, I860, the cause came on for trial, resulting in a verdict and judgment of conviction, and penalty assessed at two years’ confinement in the penitentiary. Motion for a new trial was overruled, and defendant appeals to this court. In his charge the judge defined murder, malice, and assault and battery, and as a test of the character of the assault, gave this in charge to the jury: “Whenever an assault is committed under such circumstances that, had death resulted therefrom, the offense would have been murder, such an assault is an assault with intent to murder.” The counsel for defense does not object to these charges upon the ground that the definitions are incorrect, nor that an erroneous principle is enunciated, but solely for the reason that they state abstract proposi*34tians o£ law, general in their nature, and calculated to confuse and mislead the jury to the prejudice of the defendant,— citing in support of this objection, Miles v. The State, 1 Texas Ct. App. 510, and Francis v. The State, 7 Texas Ct. App. 515.
By an examination of these cases, and other authorities on this subject, it will be found that the error does not consist in the enmiciation of general principles of law defining the offense charged, but in the failure to make a direct and pertinent application of the law to the case as made by the facts. If the charge dealt in general principles of law and statutory definitions alone, the objection would be well taken; but after having given these principles and definitions, the judge made a direct application of the law to the evidence in the case. To the following portion of the charge, thus applying the law to the facts, the counsel for defendant objects: “If the defendant went to the field of Johnson with the intent to shoot and kill Johnson, and did shoot him with intent to kill him, he is guilty of an assault to murder.” “Or, if he went where Johnson was and they then got into a quarrel, and both Johnson and defendant formed an intent each to take the life of the other, and with this intent defendant willingly entered into the fight and shot Johnson, he is guilty of an assault with intent to murder.”
The objection urged is not to the principle contained in the charge, but that there is no evidence to support it. The rule is this: “ It is the duty of the judge presiding to give instructions applicable to every legitimate conclusion which can be made from the evidence.” The theory of the State and that of defendant, if supported by any evidence, should be presented in a charge by which these theories are clearly and pertinently made prominent to the jury. If there be evidence tending to establish these theories, it is the duty, of the judge to charge thereon; *35and if the jury should convict, the error would not be in the charge. But suppose the evidence tends to support the theory of the State, but fails to establish it with reasonable certainty, the error would not be in the charge, but in the ruling of the court upon the motion for a new trial. The legal principles set forth in this charge are not questioned; the objection being a want of a predicate in the facts upon which to base the charge. We are of the opinion that the evidence lays a foundation for, and clearly indicates the necessity of, such a charge. We are also of the opinion that the evidence not only tends to support the theory of the State, but establishes it with reasonable certainty, to that degree of satisfaction which clearly justified the court below in overruling the motion for a new trial.
For the same reason the counsel for defendant objected to this charge: “If the defendant provoked the difficulty with Johnson, with the intent to kill him, and retreated, not for the purpose of withdrawing from the fight, but with a view of drawing on Johnson and then to shoot him, and if he did shoot Johnson with intent to kill him, he is, in that case, guilty of an assault to murder.”
To this we apply the observations made in regard to the first. It will be seen that these charges apply to the theory of the State; by reference to the whole charge, it will be found that the judge gave clear and pertinent charges to every phase and theory of the defense, presenting the vital issues clearly to the jury. The charge being a proper application of the law to the facts, the jury having passed upon these, we cannot say that the verdict is not sustained by the evidence; the judgment must, therefore, be affirmed.
Affirmed.