Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of ten years.
The following is a synopsis of the State's evidence: Henry Schindler, upon leaving the house of a woman named Mary Chapman, about four o'clock in the morning, was attacked by the appellant. A rock was thrown at him and thereafter a bottle. The latter struck Schindler in the head and knocked him down. As he jumped up he was cut by the appellant in the jaw and upon the head. He was again knocked down and cut on the head and in the breast. The appellant was on top of Schindler, who was screaming for help. A night officer observed them and flashed his light in the direction of the two men, at which time the appellant released Schindler and fled. Witnesses who were nearby heard Schindler beg for mercy and ask to be released, and that the appellant said that he would not release him but would cut his throat. Mary Chapman was a prostitute and the appellant had been a frequenter of her place. *Page 603
The physician who examined Schindler found a wound above the left eye, which wound was ragged and jagged and had fractured the outer layer of the skull. The wound had the appearance of having been made with a blunt instrument, and was about one and one-half inches in length and one-half or three-quarters of an inch in depth. There was another wound on the back of Schindler's head which was located to the back of the left ear, about three inches from the collar, and was from an inch and one-half to two inches in length. This wound had the appearance of having been inflicted by a sharp instrument. The skull was not fractured at that point. There were other wounds on the left side of his neck. There was a very long wound on his neck, which was not very deep. A number of stitches were taken in this wound; and it also seemed to have been made with a sharp instrument. On the left chest there was a wound made by a sharp instrument which penetrated through the skin down to the ribs and undermined the ribs for a distance of probably two inches to the middle line. This wound did not penetrate the chest or go through the ribs. The wound was probably one inch long and penetrated in for about two inches. The heart and the lungs were in the vicinity of this wound. The wound in the back of the head could not have been inflicted by striking with a bottle, but that in front of the head might have been so inflicted.
There was evidence that a knife was used by the appellant in inflicting some of the wounds. A witness testified that she saw a knife in the appellant's hand.
The appellant testified that he was assaulted by Schindler. He claims that he was drunk and that the wounds upon Schindler were inflicted in a fight; that he struck Schindler upon the head with a bottle, which broke, a part of it remaining in his hand; that he struck Schindler several times with the broken bottle but did not use a knife; that he threw a rock at Schindler but did not know whether it hit him or not.
The court instructed the jury upon the law of aggravated assault, as well as upon that phase bearing upon the offense of assault with intent to murder. It also instructed the jury in the following terms:
"To warrant a conviction for, the offense of assault to murder the jury must be satisfied from the evidence beyond a reasonable doubt, that the defendant, in the commission of the offense, if any, he did, was actuated (a) by malice aforethought and (b) with the specific intent to kill. If the State has failed to make such proof, or if you *Page 604 have a reasonable doubt thereof, you should acquit the defendant of assault with intent to murder."
While the description of the instrument used and the result produced are meager, still in reaching a conclusion as to the intent of the appellant, his words and conduct, particularly his persistence in assaulting the accused as shown by the State's testimony, his specific declaration that he intended to kill him, and his flight at the time the officer appeared with a flashlight, are all circumstances which it was within the province of the jury to weigh, and this court does not feel warranted, in view of the whole record, in deciding that the jury's conclusion that the appellant's offense was an assault to murder is not supported by the evidence.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.