To constitute an assault with intent to murder, two things must concur, viz.: 1, an assault, and 2, a specific intent to kill. (Prewitt v. The State, 20 Texas Ct. App., 129; Davis v. The State, 15 Texas Ct. App., 475; White v. The State, 13 Texas Ct. App., 259; Harrell v. The State, Id., 374; Gillespie v. The State, Id., 415; Courtney v. The State, Id., 502.)
In this»case the evidence sufficiently shows that the defendant committed an aggravated assault by the use of a dangerous weapon in an angry and threatening manner, with intent to alarm another, and under circumstances calculated to effect that object. (Penal Code, article 489, subdiv. 3.) But the evidence further shows that,, at the time such assault was committed, the ability to commit a battery did not exist, because the person at whom the assault was directed was in a position which rendered it impossible for the defendant to inflict a battery upon him with *130the gun. There was, therefore, no assault committed, except that character of assault named in subdivision 3 of article 489, above cited, which is an assault with intent to alarm, and not an assault with intent to murder, and is not applicable to the last named offense. To constitute an assault with intent to murder, the assault must be coupled with an ability to commit a battery upon the person assaulted—such an ability as is specified in subdivisions 1 and 2 of said article 489; and the court should have so instructed the jury.
Opinion delivered October 29, 1887.Because the court failed to thus instruct the jury, and because the evidence does not support the conviction, the judgment is reversed and the cause remanded.
Reversed and remanded,