Yanez v. State

20 Tex. 656 | Tex. | 1858

Wheeler, J.

Two grounds are relied on for reversing the judgment. 1st. That the verdict was not warranted by the evidence. 2d. That the Court erred in refusing to grant a new trial, on the ground of surprise; and because the defendant did not have a fair and impartial trial.

It appears by the evidence, that the assault was voluntary, and committed with deliberate design; and there is the absence of any extenuating circumstance. Had it caused the death of the party assaulted, the crime would have been murder. (Penal Code, Art. 607, 608.) And that is made a criterion by which to determine the intent, and fix the guilt of an assault with intent to murder. (Id. 497.) Of course it must have been committed with an instrument capable of producing death, and in such manner as to evidence an intention to take life. The instrument is not described by the witnesses, otherwise than as a knife; but that is an instrument capable of producing death. The injury appears to have been inflicted in a vital part, in a manner and under circumstances well calculated to induce the belief that the accused intended to take life. We think the evidence sufficient to warrant the verdict.

The alleged surprise consisted in relying on mistaken information as to what the witness McLane would testify. The surprise might have been avoided by inquiring of the witness himself, before announcing for trial. No sufficient excuse is shown for the want of diligence in obtaining testimony, or the failure to ask a continuance, if necessary, to obtain testimony material to the accused. Nor does it appear that there are other witnesses whose testimony is material to the defendant, and whose attendance may be procured upon another trial. No such witness is named in the application, and if there were such their affidavits of what they would testify ought to have been procured, or their non-production accounted for. That the defendant was confined in jail, in default of giving bail for his appearance to answer the charge, cannot be recognized as a legal excuse for the want of the requisite diligence in preparing for trial. His inability to give bail may have been his misfortune ; but it is not a fault of the law or its officers.

It is not perceived that any right of the accused was denied him upon the trial; or that there is any ground to apprehend that he had not a fair and impartial trial. The record discloses no evidence of any want of fairness and impartiality in the conduct of the ease ; and the conviction appears to have been in all respects legal and proper. We are of opinion, therefore, that the Court did not err in refusing a new trial, and that the judgment be affirmed.

Judgment affirmed.