Appellant was indicted in the District Court of Atascosa County on a charge of assault with intent to murder one Gaspar Cruz. He was tried, and on the 16th day of April, 1908, *Page 40 found guilty as charged and his punishment assessed at confinement in the penitentiary for two years.
1. A reversal of the judgment of conviction is sought on the ground that the court erred in submitting to the jury the issue of assault with intent to murder, because as claimed defendant had been convicted at the fall term, 1907, of the District Court of Atascosa County, of aggravated assault in this case and had at the same time filed his motion for a new trial which was granted and the verdict of conviction set aside, and that these proceedings result, as a matter of law, in an acquittal of the higher grade of the offense charged and that he was no longer subject to be prosecuted for the crime of assault with intent to murder. It is sufficient answer to this contention to say that the record, as same appears before us, does not support this contention further than the bare recital of the alleged facts as they appear in the motion for a new trial. The judgment of conviction, as claimed, for aggravated assault does not appear in the record, nor, indeed does any proof of it by bill of exceptions, affidavit or otherwise than the mere statement in the motion for a new trial. We think if appellant had been convicted on this charge of aggravated assault and no judgment had been entered thereon, that the proper practice would have been for him to have filed a motion in the case asking that the record be perpetuated and a judgment of conviction thereon entered. This, however, was not done, and so far as we can know, no former trial was ever had. It is stated in the brief of appellant that the record, even as amended, does not embrace a certified copy of the judgment of conviction of aggravated assault, nor does it embrace a certified copy of the minutes of the court usually entered by the judge on his trial docket. These, it is stated, by reason of an oversight on the part of the clerk and the judge, were not entered, but it is said that affidavits were made as to said proceedings, and that these were part of the record of the case. We do not, however, find such affidavits in the proceedings, nor do we believe that the validity of the proceedings could have been impaired or attacked by mere ex parte affidavits.
2. The only other ground of the motion for a new trial is that the verdict of the jury is not supported by the evidence. We have carefully examined the record and are not prepared to say that the evidence does not support the conviction. It may be conceded that the testimony of the prosecuting witness and some of his kinsmen who were with him is improbable. He testifies in substance that five persons were attacking himself and two brothers with knives, each about a foot long and that there had been no feeling of enmity or ill-will between them prior to the date of the offense charged. The evidence shows that Gaspar Cruz, with his brothers, went to the house of one F. Aguerro, where they understood there was to be a dance and that among other persons whom they met while there, were the appellant and his brothers, Bonifacio, Acquio and *Page 41 Sebreion, and that after he had left with his brothers Juan Hose Cruz and Antonio Cruz, and had gone some little distance they saw five men and they rushed upon them with knives calling to them at the same time to stop, "Ijos de Chingados;" that when they first saw them they had knives a foot in length; that he and his brothers ran towards the house of one Francisco Botello and that all five ran after them and caught up with them and in the assault which ensued they stabbed him, from which wound he was in bed twenty days and was not at the time of the trial able to work. This testimony was confirmed by other witnesses and makes the case, we believe, of assault to murder.
We believe there is no error in the record justifying a reversal of the case and it is therefore affirmed.
Affirmed.
ON MOTION FOR REHEARING. December 12, 1908.