In as much as the knife used by appellant on the occasion in question did not, in the manner used, cause the death of the injured party, we have difficulty in following appellant in his insistence that he was injured by the action of the trial court in letting Dr. Pipkin testify that such a knife in the hands of a man of appellant's size, was capable of producing death if used on a girl weighing 118 pounds, about the size of said injured party. The case of Hilliard v. State, 218 S.W. 1052, cited by appellant, seems on such wholly different facts from the case before us, as to hardly be in point. The issue in that case turned upon the deadly character of a pistol used as a bludgeon — a question, the solution of which might be affected, but unjustly so, by the opinion of a doctor who was entirely without experience in judging the effect of such use. Hilliard was on trial for an aggravated assault, and the opinion of the physician that the pistol so used as a bludgeon was a deadly weapon was of much materiality. In this case the doctor whose testimony formed the basis for the objection did see and treat the wounds inflicted on the injured party by the knife in the hands of appellant. The charge here was assault to murder, and the conviction was for that offense. Regarding the weapon used, the court in this case told the jury that if they found from the evidence that such knife was one not likely to produce death, or if they had a *Page 218 reasonable doubt thereof, then the intent to kill was not to be presumed, but must evidently appear. It must be manifest to everyone that a knife with a blade one to two inches long is capable of producing death when used upon another human being. The arteries in many parts of the body lie so near the surface as to be easily reached by the use of such a knife. The mere statement in evidence that such a weapon is capable of causing death, when death and its cause was not an issue, and when there was no serious controversy over the fact of such use, whether the testimony be given by a physician or any other person, would hardly be such error as to call for a reversal.
A further review of the record fails to cause us to change our minds in holding that the facts were not such as to call for a charge on self-defense. In our opinion the facts show an assault of such character as to merit a severe penalty.
The motion for rehearing will be overruled.
Overruled.