Motion for Rehearing.
DAVIDSON, Judge.Among the exceptions reserved to the charge was that of the failure of the court to charge upon appellant’s lack of intent to kill and upon aggravated assault.
These matters were not called to our attention by áppellant upon original presentation.
That the injured party received two bullet wounds from a pistol in the hands of appellant is not disputed. One bullet entered above and the other below the knee of the same leg. The shooting occurred while the parties were scuffling in the front seat of an automobile.
It was appellant’s testimony that the pistol accidentally fired as a result of the injured party’s kicking it with her foot. He stoutly denied any intent upon his part to kill the injured party.
There is a lack of any testimony showing a specific motive on the part of appellant to kill the injured party.
In Watts v. State, Tex.Cr.App., 207 S.W.2d 94, we made it clear that the specific intent to kill, which is an essential element of the crime of assault with intent to murder, is a fact question and that no legal presumption attains by which that fact is deemed established.
Under the facts here presented, the conclusion is reached that appellant was entitled to have the jury instructed upon the lack of an intent to kill and tipon the law of aggravated assault, and that the trial court fell into error in failing and refusing to do so.
It follows, therefore, that appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
Opinion approved by the Court.