Green v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

— Appellant complains of the failure of the court to give his special charge number seven. Said charge does not appear in the record save as it is copied in appellant’s amended motion for new trial. To call for review of the court’s action in refusing a special charge, exception must be reserved. This may be done by an exception noted on the charge itself over the trial judge’s signature, or by a formal bill reserving the point. Linder v. State, 94 Texas Crim. Rep., 316, 250 S. W., 703; Cunningham v. State, 97 Texas Crim. Rep., 624, 262 S. W., 491; Benson v. State, 105 Texas Crim. Rep., 268, 287 S. W., 1097; Arnold v. State, 118 Texas Crim. Rep., 624, 39 S. W. (2d) 49. In neither of the ways suggested was exception taken to the refusal of the special charge.

Complaint is again urged that the trial court failed to respond to an objection to the instruction given the jury, which objection is as follows: “Because said charge fails to instruct the jury that in as much as the instrument with which the homicide was alleged to have been committed was not shown to have been a deadly weapon either per se, or the law as to the manner in which it was used, that the defendant would be presumed to not have acted with malice and therefore could not be convicted of any higher offense than aggravated assault.” We think the objection *359did not call attention to a correct principle of law. In this connection we are referred to the case of Miller v. State, 112 Texas Crim. Rep., 125, 13 S. W. (2d) 865. In that case the killing was with a bottle. Nowhere in the charge in that case did the court require the jury to find that the accused intended to kill. In the present case the jury were told that whoever “voluntarily” killed another would be guilty of murder. Then followed this instruction: “ ‘Voluntarily’ as herein used, means in a voluntary manner; one’s own will. An act is voluntary when done by design, with intent, intentional, purposed, intended.” In applying the law the jury were told that before appellant could be convicted of murder they must find beyond a reasonable doubt that he “voluntarily” killed deceased.

Upon the trial an issue arose which made it necessary for the court to instruct on the question of whether the wound produced the death of deceased, or whether death resulted from gross neglect or improper treatment of the wound. This necessarily, under the- facts, called for an instruction on assault to murder, and aggravated assault. In paragraph thirteen of the charge the court defined an' assault and battery in the words of the statute (article 1138, P. C.). Appellant directed an exception at said paragraph upon the ground, among others, that the court did not in such paragraph or anywhere in the charge define a “deadly weapon.” We observe that aggravated assault was not submitted on the theory that the assault was committed with a deadly weapon, but upon the theory that a serious bodily injury was inflicted upon the person assaulted. Subdivision 7, article 1147, P. C. The jury were told, in substance, that, if appellant, without malice aforethought, and with no intent to kill, assaulted deceased with a knife, he would be guilty of an aggravated assault only, apparently without regard to the character of the knife.

We have been at some loss to appraise the objections mentioned, but regard them as pointing out no serious errors in the charge when considered in its entirety under the theories upon which the case was submitted.

The motion for rehearing is overruled.

Overruled.