Hinds v. State (55 S.W.2d 1041, 1932)

LATTIMOBE, J.

Conviction for assault with intent to murder; punishment, two years in the penitentiary.

Tbe facts in this case are sufficient to justify tbe jury’s conclusion that appellant cut Marton Busk, inflicting a wound across bis stomach some eight inches in length, going through tbe walls of the stomach. There appears to have been no evidence introduced on behalf of appellant. The only bill of exception found in the record complains of the introduction of a knife before tbe jury. Tbe bill is qualified at length by tbe trial judge. Tbe facts in testimony, as well as those recited in the qualification of the court, make apparent tbe fact that no error was committed in tbe introduction of the knife in evidence. There are no exceptions to the charge of the court, and no other complaints of procedure.

Tbe judgment will be affirmed.

On Motion for Behearing.

MOBBOW, P. J.

-In bis motion for rehearing, appellant contends that the evidence does not support a greater offense than aggravated assault. The evidence is to the effect that Marton Busk, a youth nineteen years of age, was wounded by tbe appellant with a knife, the blade of which was about three inches long. According to tbe doctor, tbe wound was across tbe lower part of the abdomen. It was about eight inches in length and passed through into the hollow for a half or three-quarters of an inch. Tbe attending physician stated that in tbe absence of infection the wound was not one likely to produce death. The knife was estimated to be about four or four and a half inches long, including tbe blade. One witness gave testimony that tbe blade was about three- inches long. Tbe knife blade was sharp and pointed.

Tbe appellant did not testify, but his motive and intent were to be gathered by tbe jury from tbe evidence introduced before them.

The charge of the court is unexceptionable, giving to tbe accused the full benefit of the law applicable to the various grades of the offense. On the facts before us, this court ■would not be justified in bolding that the jury was not authorized to determine that the knife as used was a deadly weapon, and that it was used in a manner such as to justify the jury in concluding- that the intent was to kill.

The court having, in its charge, fairly and. fully presented to the jury for solution all questions of fact which were raised by the evidence, including the issue of aggravated assault, and the jury having found that the appellant was not actuated by malice but that he used a deadly weapon with intent to kill Marton Rusk, this court finds itself unable to conceive of any tangible legal basis upon which to hold that the' verdict rendered and approved by the trial judge was not authorized by the facts and the law. We have ■been referred to no precedents supporting the appellant’s theory and have perceived none. However, the number of cases upon the subject found in Vernon’s Ann. Tex. P. C. 1916, vol. 1, p. 596, precludes any discussion of them in detail.

Upon the record before us, we are constrained to overrule the motion for rehearing, and it is so ordered.