¶1The offense is assault with intent to murder; the punishment, confinement in the penitentiary for two years.
¶2The recognizance on appeal is fatally defective in failing to show that appellant had been convicted of a felony. If we understand the corrected recognizance brought forward in a supplemental transcript, appellant did no more than to draw a new recognizance and file it with the clerk. He and his sureties did not enter into a new obligation. It does not appear that the court was in session at the time. There is nothing in the record to show that said instrument was entered in the minutes of the court. We do not understand that a defective recognizance can be amended in the manner shown by this record. We quote article 835, C. C. P., as follows: "When an appeal is taken from the judgment of any court of this State, by filing a bond or entering into a recognizance within the time prescribed by law in such cases, and the court to which appeal is taken determines that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond, on such terms as the court may prescribe."
¶3The appeal is dismissed. Appellant is granted fifteen days from this date in which to perfect his appeal.
¶4Dismissed.
¶5The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
¶7This 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.
¶8We 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.
¶9It 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.
¶10Examining 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.
¶11The motion for rehearing will be overruled.