*1 or cans of is 24 12-oz. Bottles beer more than portation being transported said beer prima evidence that facie prima however, only transportation, person’s own use. person’s being transported it was that evidence facie showing by evidence can rebutted be This evidence use. own person’s was for the beer transportation said such that use.” requested instruction Doubtless, response in language charge practically as the same embodied above-quoted Special Re- requested in the which was
that Charge No. 2. quested charged the further the court to be noted It is also believed, they had a reasonable doubt jury if beverage his own alcoholic appellant possessed this guilty. they find him not consumption, then should use original opinion correct our we were to us that It seems charge requested the same embodied held that
when we excepted general he now principle which claims finally objected which this case to. Under the circumstances charge given, itself, correct in the we think the court was finds requested practically the same overruled. The motion for will therefore be Henry, Willie Jr. v. State. 30, 1952. January No. 25679. *2 Presiding. Holt, Judge
Hon. Lester Steger, Columbus, F.
G. Austin, Blackburn, state. George Attorney, State’s Judge. DAVIDSON, offense; punish- with murder is the
Assault ment, eight years penitentiary. Smith, According party, testimony, injured to the state’s girl balcony picture theatre. A
was seated in the of a motion balcony and friend of both and came into the Smith ap- thereafter, took a minutes seat next to About five Smith. girl go pellant balcony down- came into the and asked the go. ready replied stairs with him. She that she was balcony re- Whereupon, appellant time left the and in short Again girl go.” ready turned she and said to the “was he go quote happened, refused to with him. then As to what from injured party the direct follows: examination of the something I the back.
“Then after a while I felt hit me in with; up. blood I raised It was a knife that he hit me felt running sitting my he me. down I down when hit back. was a cut He hit me under time. It was the shoulder blade the first time. he hit me me the second when the first time. Then he hit then, (Indicating.) spine. He stabbed far from the me about this anything anything I had not not said to him and he had girl me; talking me this all the at the time he was cut he any I He wasn’t time. don’t think the relation to him. was married to her. Henry first
“Willie me when he cut me the was in back of I I hollered. Then time. When he stabbed me the second time legs my up. up, tried to stand I I weak in couldn’t stand was up I stab- after was going I couldn’t stand down. I started my hips down.” bed, paralyzed from I was party; were inflicted Two wounds superficial; was stab the other on the left shoulder was one spine” “right about over the neck and wound below deep, and a half inches and three or three vertebra seventh wound severing result of this partially cord. As a hospitalized three months injured part for about was paralyzed. The partially the time of the trial remained at knife, pocket one blade a two-bladed wounds were with three, quarter measuring other, and a and the three inches length. reflect which blade inches The record inflicting injuries. used in *3 prompted theory that the assault
It was the of the state friend broken a date with had because the Appellant, testifying behalf, presented de- the of a lack self-defense based fense of intent to kill of apparent the threats of the attack as also antecedent party. appellant’s the facts are insufficient It is contention that support specific kill the conviction in that no intent argues aforethought Appellant correctly malice is shown. deadly weapon a inasmuch as the instrument here used was not se, per presumption no kill under of an intent to arises and that question. such circumstances such an intent a fact became injury But the with an instru- fact the inflicted was per necessarily deadly weapon ment reflect not se a the of an absence intent kill. State, 744,
In 34, Ammann v. 145 Tex. R. 165 2d Cr. controlling S. W. sufficiency had of we occasion to state rule the the the evidence to show an intent kill. there said: We specific
“The of- intent to kill of the is an essential element of 1160, C., fense assault with intent to murder. Art. P. Vernon’s may Ann. P. C. Such intent instru- be inferred when the committing ment deadly weapon. used the a If assault weapon the deadly, part used is the intent to kill on the may by of the accused rounding be ascertained from and sur- shown the possible facts and death circumstances. If it is might by weapon used, have been inflicted and if the ac- thereby cused intended to take life the use made complete, offense of assault with intent to murder even
91 weapon. Branch’s deadly was not though used the instrument 113, State, W. R. 38 S. 1636; Tex. Cr. C., 37 Franklin v. Sec. 206; 602, 2d State, Tex. R. S. W. 802, 1016, Basquez Cr. v. 261, 2d 526.” State, R. 58 W. 123 Tex. S. Rose v. Cr. in- held case, supra, were in the Ammann The facts stated, differ kill, the rule under
sufficient to show an and extent of chiefly in nature from the instant facts partially severed injury injury Here, inflicted. very death easily resulted cord and have could dangerous injury was injured party. or serious shown in the Ammann case. facts sufficient
The are conclusion reached that the guilt. jury’s warrant judgment is affirmed. Opinion approved by the court. rehearing.
ON APPELLANT’S motion BEAUCHAMP, Judge.
Appellant contends, rehearing, in his motion case, have overruled the laid doctrine down in the Ammann supra.
We have us reconsidered the facts the case before now expressions opinion herein, firmly and are opinion right distinguish- A was reached. clearly ment was made between case the facts of the facts the Ammann case which the cited as law, however, basis for the affirmance. The discussion of the quite conclusive on matter at issue herein.
Appellant’s motion for is overruled. Martinez
Arturo v. State. No. 25563. December Rehearing February 13,1952. Denied Appellant’s 12,1952. Second Motion for