WILLIE LEE DAVIS V. STATE
No. 29,092
Court of Criminal Appeals of Texas
June 12, 1957
Mоtion for Rehearing Overruled October 16, 1957. Appellant’s Second Motion for Rehearing Overrulеd (Without Written Opinion) November 13, 1957.
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George E. Gilkerson, District Attorney, J. Collier Adams, Assistant District Attorney, Lubbock, and Leon Douglas, State’s Attorney, Austin, for the state.
DAVIDSON, Judge.
Under an indictment charging assault with intent to murder with malice, appellant was convicted of assault with intent to murder without malice and her punishment assessed at twо years in the penitentiary.
The facts are well stated in a bill of exception, which the trial court approved without qualification. We adopt that as our statement of the сase:
“Upon the trial the evidence was contradictory; the prosecution offering evidence that the defendant asaulted the prosecuting witness and cut her with a butcher knifе, as a result of a fight emanating from the prosecuting witness’ claim that the defendant had stolen some ‘panties’ off of a ‘community clothesline.’ The defendant and her witnesses claimеd that the defendant was acting in self-defense, and, at the time of the difficulty, the prosecuting witness was armed with a knife. The state’s evidence was that the assault occurred outside the dеfendant’s apartment ‘in the yard,’ while the defendant and her witnesses insisted that it occurred inside the defendant’s apartment.”
In the concluding portiоn of that charge, the jury were instructed that if they found that appellant had provoked the difficulty “then you will find the defendant guilty of assault with intent to murder and assess her punishment as heretoforе stated in this charge.”
The sole and only objection to this charge was that it was “a comment on the weight of the evidence.”
In her brief, appellant forcibly contends that the chаrge was error and that, instead of depriving her of her right of self-defense—as is the purposе of a charge on provoking the difficulty—it was an instruction to convict her of assault with intent tо murder, without reference to a finding of the existence of guilt of the elements of that offense or the presumption of innocence.
It is not necessary to determine appellant’s contention as to the charge, because the exception to the сharge was not sufficient to call to the attention of the trial court the error claimеd therein.
Art. 658, Vernon’s C.C.P., requires that the exception to the charge must distinctly specify eaсh ground of objection.
We cannot agree that the objection to the charge tо the effect that it was upon the weight of the evidence covered the error now claimed in the charge.
Other matters presented in the brief have been considered and аre overruled without discussion.
No reversible error appearing, the judgment is affirmed.
ON MOTION FOR REHEARING
DICE, Judge.
Appellant urges fundamental error in Paragraph 15 of the court’s charge wherein the issue of her guilt of murder without malice was submitted to the jury. In said paragraph the court
Appellant insists that the court’s instruction was fundamentally еrroneous because it authorized the jury to convict her upon a mere finding that an assault was committed with a knife without finding that the weapon used was a deadly weapon or that serious bodily injury was inflicted.
With such contention we do not agree. Appellant overlooks thе fact that under the court’s instruction, the jury was required to find, before convicting her, not only that she committed the assault with the knife but also that she committed it with the intent to kill the injured party. The specific intent to kill was an essential element of the offense. Roming v. State, 154 Texas Cr. Rep. 605, 228 S.W. 2d 160 and Hunter v. State, 161 Texas Cr. Rep. 225, 275 S.W. 2d 803. Where the weapon used is not of itself deadly the intent to kill may be ascertained from surrounding circumstances. Henry v. State, 157 Texas Cr. Rep. 88, 246 S.W. 2d 891 and Windham v. State, 162 Texas Cr. Rep. 580, 288 S.W. 2d 90. The court’s instruction requiring the jury to find that appellant not only made the assault upon the injured party but with thе intent to kill her was a sufficient submission of the issue of her guilt to the jury. See 4 Branch’s Ann. P.C., 2d Ed., Sec. 1844, page 187 and cases there cited.
It is observed that the judgment entered by the court adjudges the apрellant guilty of the offense of murder without malice as found by the jury which follows the verdict shown in the record to have been returned by the jury; however, the verdict as copied in the judgment recites that the jury finds the appellant guilty as charged in the indictment. The judgment is reformed and corrected to recite that the verdict of the jury finds the appellant guilty of the offense of assault with intent to murder without malice.
The motion for rehearing is overruled.
Opinion approved by the Court.