The information in this case charges that defendant committed an aggravated assault and battery upon G. A. Schuster, by cutting, striking, and stabbing him with a knife, stated in the information to be a deadly weapon. A jury was waived, and the cause submitted to the court. The court convicted the defendant of an aggravated assault and battery, and fined him $100.
On the trial of the cause, the defendant proposed to prove, by the witness Baumgartner, that Schuster was. armed with a pistol at the time of the difficulty between him and the defendant; which evidence, being objected to, the court excluded, and to which ruling the defendant took a bill of exceptions. There is no testimony in the transcript before us tending to show that Schuster attempted to use a pistol in the difficulty, or that Schuster said or did any thing from which it reasonably appeared that it was *146his purpose or intention to draw or use a pistol upon the defendant. The court below, therefore, properly excluded this testimony. There was some conflict in the evidence. It was the appropriate province of the court to weigh the evidence and pass upon the law and the facts, a jury having been waived.
The objection of the defendant to the evidence of Dr. Atkinson came too late. We believe, however, that it was competent for the State to prove by Dr. Atkinson the locality and extent of the wounds inflicted by the defendant, with a knife, on the body of Schuster, to aid the court (there being no jury in the case) in determining whether the knife, in the manner in which it was used by defendant, was a deadly weapon.
One of the grounds set out in defendant’s motion for new trial is, because “ there is no evidence that defendant used a deadly weapon, no witness proving that the knife used was a deadly weapon ; and that there was no evidence that it was used with intent to take the life of Schuster, or to do him any serious bodily injury.” A deadly weapon is one likely to produce death, or great bodily harm. 2 Bishop’s Cr. Law, 335; Kouns v. The State, 3 Texas Ct. App. 13.
The prosecution proved that the blade of the knife with which the defendant cut Schuster was from three to three and a half inches long, and that the wounds inflicted with it by defendant were on the back of Schuster, on the left side of the spinal column. And while none of the witnesses did say that the knife used by defendant was a deadly weapon, they stated facts which show that it was such an instrument, and was used by the defendant with the intent to take the life of Schuster, or to do him serious bodily injury. The judgment is fully sustained by the law and the evidence.
The judgment of the County Court is affirmed.
Affirmed.