Appellant was convicted in the District Court of Hunt County of assault to murder, and his punishment fixed at two years in the penitentiary.
The assault occurred on December 24, 1922, in the little town of Quinlan in Hunt County. The parties had been out to appellant's *Page 276 house where they had partaken of eggnog and had returned to town carrying a bottle of whisky in the car belonging to appellant which was placed in the office of a doctor. Upon discovery of its presence the doctor directed its removal and the injured party carried it from the doctor's office to a barbershop where it was left. Upon discovering that it was not in the doctor's office appellant accused the injured party of taking it away and intimated that he had stolen it. Both parties were under the influence of liquor, but the injured party, one Blount, was described by various witnesses as being drunk and it is shown that he was staggering. Shortly before the difficulty Blount entered the barbershop where the cutting took place and sat down behind a stove. Presently appellant came in, went over and stood near the stove and Blount attempted to engage appellant in conversation. According to the testimony of Blount and a number of other witnesses, appellant angrily demanded that Blount cease to speak to him and when repeated attempts at conversation were made, appellant stabbed Blount twice and cut at him again with all the force of which he was capable, the knife being already open. One witness testified that shortly before appellant went into the barbershop appellant had his knife in his overcoat pocket open and witness said to him "Let's not have any trouble". Appellant said he was going to get Blount and had the stuff to get him with and he then put his opened knife back in his pocket. This witness said that just after the difficulty took place he saw appellant come out of the barbershop and the latter said to witness that he got him just like he said he would. Witness further testified that he went to a dance that night with appellant and had a conversation with him on the way over there and told appellant that he believed he had killed Blount, and appellant said that was what he intended to do.
There are five bills of exceptions in the record. He first complains of testimony that Blount was confined to his bed two or three months after being injured and was not able to work for about five months. An objection that this was irrelevant, immaterial and prejudicial and calculated to inflame the minds of the jurors, does not present any such objection as would call for serious consideration. The deadly character of the weapon and the serious nature of the injury inflicted were both for the jury, and were material as reflecting the intent and purpose of the appellant and the character of weapon used by him. The court submitted both assault to murder and aggravated assault in his charge to the jury.
There are two complaints evidenced by bills of exception showing objections to testimony as to the fact that Blount took pneumonia and pus formed in his wound and a rib had to be taken out, and that he wore a tube for some time; also that the doctor thought Blount was going to die and told him so. We do not regard either of the bills as presenting serious error. One of them is qualified by the *Page 277 court with the statement that the grounds of objection as stated by appellant at the time he reserved the exception were not those set out in the bill as presented. In view of the fact that the jury gave the appellant the lowest penalty, we do not regard the evidence as calculated to affect the minds of the jury or inflame them. Nor do we regard the objection that the prosecuting witness was not allowed to tell what he had been doing for some time prior to the trial, as material injury. The bill of exceptions complaining of this shows that the State's attorney admitted that witness had fully recovered and was able to do any and all kinds of ordinary work.
There are a number of objections and exceptions to the court's charge. However, there is nothing in the record either by notation on the documents containing such objections, or by separate bills of exception evidencing any certificate by the learned trial judge of the fact that such exceptions and objections were presented to him for consideration at any time. Such being the fact we cannot ourselves consider such exceptions. Alsup v. State, 85 Tex.Crim. Rep.; Payne v. State,84 Tex. Crim. 2.
It appears that when appellant went to where Blount was shortly before the difficulty, he had his knife open in his pocket. He asked a special charge to the effect that if he feared or anticipated an attack from Blount, the fact that he had his knife already open should not be considered as a fact against him. The charge was correctly refused. It was manifestly on the weight of the evidence. Limitation of the effect of evidence legitimately before the jury, by special charges singling same out, is obnoxious to the general rules and should be avoided in most cases save when such evidence is admissible for a specific purpose, and the jury might be liable to use it for other purposes to the hurt of the accused.
Appellant asked a new trial based in part on newly discovered evidence, the latter being set forth by affidavits attached to said motion. The error of the refusal of such new trial is not complained of by any bill of exceptions. The order overruling said motion recites: "The court having heard said motion and the evidence thereon submitted, is of the opinion that the same should be overruled." Since the rendition of the opinion in Black v. State, 41 Tex.Crim. Rep., we have uniformly held that bills of exception and statements of fact containing evidence heard by the court on the presentation of motions for new trial, should be filed during the trial term in order to entitle same to consideration at our hands; and it seems to be also the rule that when the judgment or order on the motion recites that the court heard evidence, and there is in the record no preservation of such evidence either by bills of exception or statement of facts, we must conclude that evidence was heard and that it warranted the judgment of the court below. Cade v. State, 96 Tex. Crim. 523, 258 S.W. Rep., 484; Salinas v. State, *Page 278 95 Tex. Crim. 309; Ferguson v. State 95 Texas Crim Rep., 212; Rabon v. State, 94 Tex.Crim. Rep., 251 S.W. Rep., 806; Reid v. State, 84 Tex.Crim. Rep.; 226 S.W. Rep., 408; Watson v. State, 87 Tex.Crim. Rep., 220 S.W. Rep., 329; Wilson v. State, 87 Tex.Crim. Rep., 223 S.W. Rep., 217; Slade v. State, 85 Tex.Crim. Rep., 212 S.W. Rep., 661; Mitchell v. State, 85 Tex.Crim. Rep., 209 S.W. Rep., 743; Berry v. State, 83 Tex.Crim. Rep., 203 S.W. Rep., 901. When the order overruling the motion for new trial recites that evidence was heard, which evidence does not appear in the record either by bill of exceptions or statement of facts, this court will conclude that the evidence heard by the trial judge supported his conclusion. Lopez v. State, 34 Tex.Crim. Rep., 208 S.W. Rep., 167. In death penalty cases we do not adhere to such rules with strictness. Collins v. State, 95 Tex.Crim. Rep., 254 S.W. Rep., 805. We wish also to give emphasis to a proposition referred to in Cade v. State, supra, viz: When proper affidavits are attached to motions for new trial, in support of matters therein relied on which would be otherwise aside from the record, or are attached to written traverse of such motions, if it does not appear from either the order of the trial court on such motion, or from bill of exceptions, or statement of facts filed during the term, that evidence was heard by the court below, then our conclusion will be that the trial court did consider such affidavits. The judgment on the motion reciting that evidence was heard must be conclusive and in ordinary cases not reviewable, if such evidence be not brought here by bill of exceptions or statement of facts filed during term time. The judgment not so reciting, we will give to appellants the benefit of concluding that the affidavits were considered.
This disposes of the various contentions made by appellant, and finding no error in the record, an affirmance will be ordered.
Affirmed.
ON REHEARING. May 28, 1924.