33 S.W. 856 | Tex. Crim. App. | 1895
Appellant was convicted of an aggravated assault and battery, and his punishment assessed at a fine of $500 and imprisonment in the county jail for six months. The indictment contains two grounds of aggravation: First, that the assault and battery was made with a deadly weapon; second, that serious bodily injuries were inflicted upon the prosecutor. The proof shows that a pistol was used as a bludgeon, the size and the weight of the pistol not being shown. This must be done, when the pistol is shown to have been so used, in order to make proof that it was a deadly weapon. Hunt v. State, 6 Tex.Crim. App., 663; Wilson v. State, 15 Tex.Crim. App., 150; Pierce v. State, 21 Tex.Crim. App., 540. The next question presented is whether or not the wounds inflicted were serious. The testimony on this point is: "The result of the blows was that I had two gashes cut in my head, which bled profusely. My hands were cut and bruised up, and my arms were cut and bruised and skinned to the elbows. For ten or fifteen days I could not use my hands, and I had to carry one arm in a sling for several weeks. I have not yet recovered the use of the little finger of my right hand, which is partially stiff and is still painful." The injury inflicted upon the finger was very serious, exceeding that which was inflicted upon the arm, which, according to the evidence, was skinned from his hand to his elbow. The finger is still stiff. We view this as a serious matter. This opinion is not at all in conflict with the definition of serious bodily injury given by this court in the case cited in appellant's brief, to-wit: George v. State, 21 Tex.Crim. App., 315. In this case, during the progress of the trial, counsel for appellant presented a verbal motion to the court asking for a postponement of the case on account of the mental and physical condition of appellant. After the conviction of appellant, his counsel presented a motion for a new trial, and one of the grounds assigned was that appellant, during the trial, was in such a mental condition as to be unable to afford any assistance to his counsel in the management and trial of the case, and this was supported by affidavits showing that appellant, from some business complications, and from the use of stimulants, was not in his normal state at the time of the trial, but was laboring under some infirmity of mind on account of intoxicating liquors, and; perhaps, from other causes. It appears from the record in this case that this condition was manifest to counsel during the progress of the trial, and that he made a verbal motion to the court for a postponement, but it does not appear that he saved a bill of exceptions to the action of the court. This should have *308 been done. Willson's Crim. Stats., § 2187. Concede, however, that the question was properly presented in a motion for new trial, yet such a matter as a postponement the trial or a new of trial granted in such a case is within the sound discretion of the court trying the cause. If a party is drunk when placed on trial, and that matter is called to the attention of the court promptly, as soon as it is discovered, it would unquestionably be the duty of the court to postpone the case until such time as he should be in a fit condition to proceed with the trial, placing him in custody, if necessary, to get him sober. In this case, while affidavits were presented showing that appellant from some cause was, perhaps, not in as good shape for trial as if he had been duly sober, yet this matter, as stated before, was in the discretion of the court, and we do not see, in this case, that, in overruling the motion for a new trial on this ground, the court abused its discretion. So far as the preparation for trial is concerned, and the procurement of testimony in this case, about which something is said in the application, in connection with appellant's condition at the trial, for aught that appears, these acts of preparation and procurement should have been taken long anterior to the trial, when it is not pretended that the appellant was laboring under any infirmity. The judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion at the Austin branch, May 11th, 1896. — Reporter.]
