With all deference to the opinion of my brethren, I beg leave to enter my dissent from the opinion affirming the judgment against appellant for assault with intent to murder. Appellant requested a special instruction submitting the law of aggravated assault to the jury. The charge was refused, and appellant reserved an exception in due from to such action of the court. I agree to all that portion of the opinion which holds, in effect, that it would constitute assault to murder if appellant and Dunn conspired to kill Eads, the alleged assaulted party, or if they agreed to give him a severe beating, and in case it became necessary, to inflict such beating, to kill him, if he resisted. In either event I agree that this would have been an assault with intent to murder, and, had the evidence stopped here, the court would have been justified in refusing to give the charge requested. Even if the defendant had of his own volition, independent of Dunn, fired at Eads with intent to kill him, he would be guilty of an assault with intent to murder. In other words, it is immaterial which view the jury may have taken of the testimony; if that testimony led them to believe beyond a reasonable doubt that the defendant intended to kill Eads at the time he fired the shot, he would clearly be guilty of an assault with intent to murder. The specific intent to kill is the test of the offense of assault with intent to murder. But, if such was not his intent, then his offense would be of less grade of assault. Now, bearing upon the question of aggravated assault, the facts are as follows: Dunn struck Eads with a large walking came or stick. Eads drew his pistol, and fired. Appellant testifies in this connection, that, when this was done: "I drew my pistol, and shot. I did not want to kill Gano Eads, and did not try to kill him. I shot to stop the difficulty. I shot to keep Eads from killing Pat Dunn. I shot to keep Eads from killing me. I did not see him shoot at me." The accused has a right to testify *Page 467 when he is upon trial for an offense, and it is well settled in this connection that he can testify as to his intent when that question is involved in the offense charged against him; and, whether his testimony in this respect be true or false, the trial court should not decide the fact against him. In this State the jury are the exclusive judges of the facts proved, the weight to be given their testimony, and the credibility of the witnesses; and in assault to murder, as in homicide, the accused is entitled to have the jury view the facts from his standpoint — that is, as the facts present themselves to him at the time of the difficulty — and to ascertain from these facts the intent with which he acted. The court is required to charge all the law applicable to every phase of the defense presented by the testimony, however weak it may be, or however false the court may conclude it to be. It is not the province of the trial court to decide upon the falsity or truthfulness of evidence. He must frame his charge to meet the testimony of the witnesses, and leave the credibility of the witnesses and the weight to be attached to their testimony for the consideration of the jury. If the court is permitted to decide upon the truth or falsity of evidence, then he would only be required to charge the jury as to the law applicable to that portion of the testimony which he believed to be true. This would eliminate all testimony from the case not credited by the court, and the jury would cease to be judges of the facts proved, and the weight of the evidence and the credibility of the witnesses. It may be possible, or even probable, that the jury would not have believed the defendant's statement of the case as to his intent; yet it was not in the province or the court to decide this question. That was a matter of fact, relegated exclusively to the jury. The verdict might have been the same if the requested charge asked by appellant had been given, but this is a speculation. The court decided this question in advance, and withdrew it from the jury. If the charge as requested by appellant had been given, submitting the theory of aggravated assault, it might have resulted in a verdict much more favorable to the appellant. If, as he testified, he "did not want to kill Gano Eads, and did not try to kill him," then, if the jury believed this, he would not have been guilty of a higher offense than aggravated assault. He swore to these facts. The court decided they were untrue, and refused his charge. The intent with which the defendant acted is the crucial test as to whether the offense was assault with intent to murder or aggravated assault. It was the turning point in this case. It was the crucial point, and the trial court resolved the question against him. This he should not have done. In Texas, under our statutory enactments, I am of opinion that he has no authority to do this. It occurs to me that it is a direct violation of the statute. See, Moore v. State, 33 Tex. Crim, Rep., 306; Davis v. State, 28 Tex.Crim. App., 542; Mitchell v. State, ante p. 278, and cited authorities. For the reasons indicated, I beg leave to dissent from the opinion of my brethren. I think because the court refused the special instructions *Page 468 asked by appellant, this judgment should have been reversed, and remanded for a new trial.
[NOTE. — Defendant's motion for a rehearing, filed after the above opinions were delivered, was overruled without a written opinion. — Reporter.]