ON MOTION FOR REHEARING. Appellant moves for a rehearing upon four grounds persuasively stated in his motion. Same are that we erred in declining to hold the indictment defective; in not holding that the court should have charged on malice aforethought; in not holding that the court should have submitted aggravated assault, and in not holding that the case should have been continued because of the absence of the appellant's wife. *Page 41
This court has consistently held it not necessary to charge that the assault was with malice aforethought in an indictment for the offense of assault to murder, even under former murder statutes. Small v. State, 32 S.W.2d 860.
We have so recently expressed our views in regard to the lack of necessity under existing laws to submit the law of malice aforethought in the case of a trial of one for assault with intent to murder, where the averments of malice aforethought are not in the indictment, as to render it unnecessary for us to repeat such statements here. Paul King v. State,117 Tex. Crim. 43, 36 S.W.2d 490, opinion February 25, 1931.
It is true that by the terms of our statute, article 695, C. C. P., an assault with intent to commit murder includes all assaults of an inferior degree, so that upon appropriate facts where the charge is assault with intent to murder, it would be proper to submit the law of aggravated assault, yet when the assault was admittedly by shooting with a pistol, and the accused himself testified that he intended by such assault to kill the party shot by him, we are not able to see where the trial court erred in refusing to submit the question of aggravated assault. It has never been held that an issue should be submitted by the judge which is not raised or supported by some testimony in the case. We see no good to come from an attempt to analyze or reconcile with present holdings, the decisions rendered by this court when manslaughter was in our statute, and when convictions were permissible for aggravated assault in cases when the indictment charged assault to murder, upon evidence which showed a voluntary assault under circumstances which indicated a mind agitated by such emotion as to render it incapable of cool reflection. Manslaughter has been eliminated by statute, and a homicide now, — which would formerly have been but manslaughter, — is murder. Perforce then, an assault less than fatal under present laws, which have made murder of what was manslaughter, if shown to be upon such facts as would make it now murder had death ensued, would be an assault to murder. This court can not retain offenses no longer in the law, nor create them when they have no other legal ground or justification for existence than our ipse dixit.
Examining the remaning contention, we observe that the application for continuance appears properly refused, not only upon the ground discussed in the original opinion, but also because no diligence was shown to secure the presence of the absent witness. As a matter of fact, discussion of the proposition is needless as we fail to find any bill of exception in the record taken to the refusal of the continuance.
The motion for rehearing will be overruled.
Overruled. *Page 42