Appellant was convicted in the District Court of Caldwell County of an aggravated assault, and his puishment fixed at fifteen months in the county jail.
Appeal was on trial for assault to murder. Without dispute it is made to appear that about the 17th of July, 1922, appellant struck Willis Branyon, the alleged injured party, on the head three blows, two of same causing fractures to Mr. Branyon's skull. The doctors who examined the wounds and treated Mr. Branyon said the wounds might easily have resulted in death. The parties who were present at the time of the difficulty said Branyon was rendered unconscious by the blows.
There is but one bill of exceptions in the record, same presenting appellant's exception to a question propounded by the State to Mr. Branyon. Said question was as follows: "Does the defendant still owe you anything?" The objection was based on the proposition that the answer to said question would be calculated to lead the jury to believe that appellant was dishonest and would not pay his debts, *Page 6 and had not paid them, and that such answer could shed no light on any issue involved in this case. Said bill is qualified by the trial court by a statement calling attention to the fact that appellant first went into the proposition of an indebtedness to Mr. Branyon, and that because of same Mr. Branyon had refused to give one of appellant's sons credit, a short time before this difficulty, and that out of what occurred between appellant's said son and Mr. Branyon at that time, arose the dispute which caused the instant trouble. The court further in said qualification states that the only objection made at the time the testimony was offered was that it was immaterial, irrelevant and prejudicial, and that the defendant having gone into the matter of said indebtedness, he felt that the State was entitled to the facts relative thereto. We are not inclined to think the action of the trial court in this regard erroneous.
The State's theory of the occurrence was that appellant struck Branyon on the head with a bar of iron which was found at the scene of the difficulty by witnesses who so testified. The theory of the appellant was that he struck Branyon on the head with a piece of one by four plank about two feet long and two or three inches wide. There would seem no contention but that serious bodily injury was inflicted upon Mr. Branyon, under the testimony of the doctors. There are some special charges shown in the record, many of which relates to assault to murder and contain instructions that under certain circumstances appellant could not be convicted of more than aggravated assault. In view of the conviction for such assault, a consideration of said charges is pretermitted.
In the absence of any testimony showing that the blows were inflicted by a weapon not capable of inflicting death or serious bodily injury, the trial court did not err in refusing to submit the law of simple assault.
Finding no error in the record, an affirmance will be ordered.
Affirmed.
ON REHEARING. June 20, 1923.