Phillips v. State

ON MOTION FOR REHEARING.

KRUEGER, Judge.

Appellant, by his attorney, has filed an able motion for a rehearing in which he contends that we failed to take note of his objections to the court’s charge and especially to the third paragraph thereof. He contends that Article 1166, P. C., under which this prosecution was brought requires that the act depriving a person of an eye, toe, hand, etc., must be wilfully and maliciously done; and he further contends that the court in his charge failed to so instruct the jury. We quote from said paragraph of the court’s charge as follows: “Now, if you should find and believe from the evidence beyond a reasonable doubt, that on the 31st day of October, A. D., 1939, in Bosque County, Texas, one Buster Phillips did then and there unlawfully and in the County and State aforesaid, wilfully and maliciously deprive W. P. McMichael of a member of his body, to-wit, his right eye, etc.”

Preceding this paragraph the court properly defined “wilfully” and “maliciously.” It will thus be noted that the appellant’s contention is without merit.

The issue of accident was not raised by any evidence; consequently, there was no necessity for an instruction thereon.

All other matters • urged by appellant in his motion have been carefully reviewed and considered by us and are deemed to be without merit.

The motion is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.