# Vining v. State > Court of Criminal Appeals of Texas · October 19, 1910 · 66 Tex. Crim. 316 URL: https://www.frixlaw.com/law-library/cases/3975581 ## Case - **Full name:** George Vining v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 19, 1910 - **Citations:** 66 Tex. Crim. 316; 146 S.W. 909; 1910 Tex. Crim. App. LEXIS 607 - **Precedential status:** Published - **Opinion:** Addendum by Harper - **Judges:** Davidson, Harper - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3975581 ## Opinion text ON REHEARING. April 24, 1912. HARPER, Judge. This case was affirmed at the last term of this court in an opinion by Presiding Judge Davidson, and at his request we have made a study of the record, and write this opinion. Appellant in his motion for rehearing earnestly insists that as the evidence does not clearly show that he shot at the person charged in the indictment with the specific intent to kill that person, the court erred in his charge in authorizing a conviction, if he (appellant) shot at another person than the one named in the indictment, even though he shot at such other person with the intent to kill. It may be conceded that in an assault to murder case the intent to kill must be proven, as is insisted, but that is not the only element. One may shoot another with the intent to kill, but if his mind is, by an adeqquate cause, aroused to such a degree of sudden anger, fear, rage or resentment as to render him incapable of cool reflection, he would not be guilty of an assault to murder even though the intent to kill was proven. In law, under such conditions, it would be only an aggravated assault. Thus in assault to murder not only must the intent to kill be proven, but malice aforethought, either express or implied, must be shown to have existed. In a case of unlawful assault, if the intent to kill is proven, and either express or implied malice is shown, then the offense is assault to murder. So if one shoots at A with malice with intent to kill him, and he misses A and inadvertently shoots B, he has committed an offense, and the fact that he missed A and struck B does not alter the facts, nor change the grade of offense. The offense is committed, and if he acted with the specific intent to kill from malice it is an assault to murder. He can be prosecuted but once, and the State having elected to prosecute for making an assault on the person whom he strikes, if convicted he could not be again prosecuted for an offense against the person he intended to strike. He is convicted of the offense which the facts show he committed. There is no question that one who shoots another is guilty of an assault, unless the gun is fired by accident or unintentionally. In this case, under the evidence, there is no question that appellant intentionally fired the gun, and by reason of that fact ho is guilty of an assault. In deciding of what grade of assault other issues arise. To constitute assault to murder it must be shown that he acted with express or implied malice *323 and fired with, intent to kill, and if the evidence shows all those elements to exist, then the offense is assault to murder, even though he should strike some person he did not at that time see, for the law punishes one for the offense he actually commits. Article 48 of the Code provides: If one intending to commit a felony shall through mistake or accident do another act which, if voluntarily done would be a felony, he shall receive the punishment affixed by law for the offense committed; and Mr. Blaclcstone in his Commentaries, lays down the rule: “If A attacks B with malice and shoots at him, but misses him, and kills C against whom he bore no malice, it is murder. This is not because of any malice in fact against C, but because .of the evil design against B, which, it is said, is carried over against C by implication.” (4 Black. Com., 201.) In this State an assault to murder may be committed with either express or implied malice, and as said by Mr. Blackstone, because of the evil intent and design the law carries it over and by implication against the person actually assaulted. This rule has been enforced in this State at all times, it having been held, where a person acting in self-defense shoots at another but misses him and kills a third person, he is guilty of no offense. (Plummer v. State, 4 Texas Crim. App., 310; Clark v. State, 19 Texas Crim. App., 495.) Thus it is seen that one is held solely responsible for his acts, and of this he can not be heard to complain. We are of the opinion that the original opinion is correct on the questions therein discussed, but there is another question in the case which was unintentionally overlooked at that time, it not being pressed on appeal at that time. As hereinbefore stated, one is held responsible for his acts, and any defense, mitigation or extenuation that could have been offered had he shot the person he intended, may be offered if prosecuted for making an assault on one he did not intend to shoot in those cases where he missed one person and struck another. (Fretwell v. State, 43 Texas, 501 ; Leggett v. State, 21 Texas Crim. App., 382; Carter v. State, 30 Texas Crim. Rep., 551 .) In our State one who ldlls another while his mind is clouded by anger, rage or resentment to that extent to be incapable of cool reflection, aroused by an adequate cause, is not guilty of murder, but of manslaughter only, and if one shoots another under circumstances that had he killed such person, he would only have been guilty of manslaughter, then such person not dying, the assailant is guilty only of an aggravated assault, the element of malice being lacking. In this case appellant was manager of a telephone exchange; he and the directors disagreed, and they settled about noon one day, and a Mr. Henderson was placed in control of the exchange. Appellant and his.wife were keeping house in the telephone office, sleeping there, etc. The directors agreed at the time of settlement to give him ample time to move out. It was required that the operator sleep there to answer calls at night. When Mr. Henderson took charge-Mrs. Mining informed him that they could not move out *324 that evening, and as they had an extra cot he conld take it in the adjoining room and sleep on it, unless a young lady friend came t'o visit her, in which event she would attend to the exchange that night for him. The young lady came and at night-fall the directors learned that Mr. Henderson could not remain in the office. They gathered in a body and went to the office after supper and demanded that Mr. Henderson be permitted to remain there that night, in the room where appellant and his wife had their sleeping apartments. High words ensued, when appellant’s wife and her visiting friend left the rooms; other words passed between appellant and the directors, when appellant grabbed a gun and fired, saying, “I am going to kill every G—d one of you,” the shot striking a person not a director of the exchange. Appellant in special charge Ho. 2, to the refusal to give which an exception was reserved, raises the issue of his right to hold possession and evict persons entering therein. While the charge as drawn should not have been given under the evidence, yet it called the attention of the court to the theory that appellant was in no wrong in holding the premises for the night under the circumstances, and if the directors sought to force- him out that night and by the use of language and their conduct, in the presence of his wife and her visitor, aroused in appellant sudden anger, rage or resentment, rendering him incapable of cool reflection, such acts, words and conduct would be adequate cause to reduce the offense to an aggravated assault. That is if he, by such conduct, was made angry to the extent of being incapable of cool reflection, the conduct of the parties would in law under the circumstances be an adequate cause to reduce the offense. In no part of the charge does the court define or attempt to define adequate cause as applicable to the evidence in this case. Adequate cause should have been defined and this question should have been submitted to the jury under a proper charge, and on account of the failure to do so, we are of the opinion that a rehearing should be granted and the case reversed and remanded. It is contended that on the questions herein presented, that this court has two lines of decisions. If so, in so far as any of them conflict with the original opinion and this order on the motion for rehearing, they are hereby overruled. The motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded. Reversed and remanded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3975581. Public record. Not legal advice.