34 S.W. 961
GRAYSON 
v. 
STATE.
Court of Criminal Appeals of Texas.
March 25, 1896.
        Appeal from district court, Freestone county; Rufus Hardy, Judge.
        Alfred Grayson was convicted of a crime, and appeals. Affirmed.
        Anderson & Moses, for appellant. Mann Trice, for the State.
        DAVIDSON, J.
        This is an appeal from a conviction of assault with intent to murder.
        After announcement of ready for trial, the state was permitted to amend the indictment so as to 
make it show the organization of the grand jury at the "September term, 1895," instead of at the 
"September term, 189_," as originally written in said indictment. An exception was reserved to this ruling 
of the court. If this was a necessary, formal part of the indictment, the amendment should have been 
made before an announcement of readiness for trial by the parties, upon the exception urged. This 
amendment, in our opinion, was not necessary. "It was surplusage to allege the time when the term of 
the court began, and this portion of the indictment might have been stricken out, without invalidating the 
indictment." Osborne v. State, 24 Tex. App. 398, 6 S. W. 536. Formal matters of an indictment, which 
may be amended, are such as are to be alleged therein under the second and third subdivisions of article 
530, Code Cr. Proc., as found in Willson's Criminal Statutes. Allegations which are surplusage do not come 
within the purview of said statute.
        It is contended the charge should have defined murder. We do not think so. The court defined 
assault and malice aforethought correctly. The court further charged the jury that "an assault with intent 
to murder is constituted by such facts as constitute an assault by the use of means reasonably calculated 
to produce death, coupled with malice aforethought, and with the intent to take the life of the person 
assaulted." Applying the law, the court instructed the jury as follows: "If, then, gentlemen of the jury you 
believe, from the evidence, beyond reasonable doubt, that the defendant did, in Freestone county, Tex., 
on or about the 6th day of July, 1895, make an assault upon Clabe Mickels, with the intent to injure him, 
by shooting him with a gun, and that said assault was not justified on the ground of self-defense, as 
explained to you, and that it was done with malice aforethought, as explained, and was with the intent
Page 962
on the part of defendant to kill said Clabe Mickels, then the defendant is guilty of an assault with intent to 
murder, and you will so find, and assess his punishment at confinement in the penitentiary for any term 
not less than two nor more than seven years." This latter instruction, together with the previous definition 
of malice aforethought, would have sufficiently presented this issue on this phase of the case. Smith v. 
State, 34 S. W. 960; Wagner v. State (Tex. Cr. App.) 33 S. W. 124. The appellant could not have shot at 
the assaulted party with a gun, with his malice aforethought, and with the intent to kill him, without 
committing an assault with intent to murder. The evidence is not before us, and the question of distance 
and ability to consummate this design are not noticed. As presented by this record, these charges, as 
given, are not erroneous. This character of charge was commended in the Wagner Case, supra. The 
judgment is affirmed.