Hixon v. State

Decided September 15, 1850

Tennessee Supreme Court · decided 1850-09-15

The plaintiff in error was indicted and tried in' the county of Knox on a charge of an assault with intent to kill. The bill of indictment charged the assault to have been committed by presenting a gun, but did not charge that it was done within shooting distance. The jury found the plaintiff in error not guilty of the felonious intent, but guilty of an assault.

Decided 1850-09-15

McKinney, J.:

¶1Though it might have been necessary to have averred in the indictment in question that the assault was made within the distance the gun would carry had the defendant been convicted of the felonious assault; yet it was not necessary that the same should have chargéd that fact when the defendant was found guilty merely of an assault, and the fact appeared in evidence at any time during the trial. (1)

¶2Judgment affirmed.

¶3 As to what is an assault, see Bloomer v. State, 3 Sneed, 66; Richels v. State, 1 Sneed, 606; State v. Smith, 2 Humph, 457; Smith v. State, 7 Humph. 43,