Crowley v. State

Court: Court of Criminal Appeals of Texas
Date filed: 1946-12-11
Citations: 199 S.W.2d 526, 150 Tex. Crim. 114
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4 Citing Cases
Lead Opinion

The offense is an assault with intent to murder. The punishment assessed is confinement in the State penitentiary for a period of three years.

Appellant's first contention is that the trial court erred in instructing the jury on the law of murder with malice, and also with reference to the punishment prescribed by law for such offense, because the indictment only charged her with an assault with intent to murder without malice. We note that the jury found her guilty as charged, which means guilty of an assault to murder without malice, and assessed her punishment at confinement in the State penitentiary for a term of three years — the maximum punishment prescribed by law for such an offense. The court, in sentencing the appellant, sentenced her to confinement in the State penitentiary for not less than one nor more than three years. We agree with her that in the absence of an averment in the indictment that an assault to murder was committed with malice aforethought, the court should not have instructed the jury on the law of an assault to murder with malice. We are of the opinion, however, that although it was improper for the court to instruct the jury on the law of an *Page 116 assault to murder with malice, yet that error passed out of the case when the jury found her guilty of an assault to murder without malice.

Appellant cites us to the case of Dunn v. State,81 S.W.2d 87, as supporting her contention. We have read that case and find quite a distinction between it and the present one. In that case the jury specifically found the accused guilty of an assault to murder with malice, although it was not so charged in the indictment. In the instant case, the jury merely found appellant guilty of an assault to murder without malice, as charged in the indictment. Thus it will be noted that there is quite a difference between that case and the one under consideration. We think the difference is so obvious that any further discussion thereof is unnecessary.

Appellant's next contention is that the evidence is insufficient to justify and sustain her conviction. With this we are unable to agree. The State's evidence, briefly stated, shows that Mr. and Mrs. T. H. Bird had rented one of appellant's apartments and were living therein at the time of the alleged assault; that they had always paid the rent promptly as the same became due; that on the occasion of the assault, which occurred between 9:30 and 10:00 P. M., appellant appeared at the apartment of Mr. and Mrs. Bird and inquired of them when they were going to move. Mr. Bird replied that he would move when his time was up. This did not seem to meet with the approval of appellant and she soon became offensive, pricked him in the face with her finger, then turned upon Mrs. Bird and caught her by the hair. Mrs. Bird then caught appellant by the hair and a hair pulling ensued until both fell on a divan. Mr. Bird tried to separate the women and finally succeeded in doing so. Appellant then left but soon returned, armed with a long-bladed knife, pulled off the hook on the screen door, broke a latch on the panel door, entered the kitchen and from there proceeded to the living room where she found Mr. Bird. She attacked him with the knife, the blade of which was between six and seven inches long. She cut him across the arm, and when he retreated, she pursued him and stabbed him in the back, completely severing the fifth and sixth ribs. The attending physician testified in substance that when Mr. Bird was brought to his hospital, he had an X-ray picture made of his chest; that it disclosed that the fifth and sixth ribs were severed; that there was quite a quantity of blood which had collected in the right lung; that the wound was a serious one and one which was calculated to produce death. *Page 117

The intent of the person committing an assault with intent to murder may be inferred from the character of the weapon used and the nature and extent of the wound inflicted. See Duhon v. State, 136 Tex.Crim. R.; Ammann v. State, 145 Tex. Crim. 34, and authorities cited.

Appellant did not testify, but introduced a number of witnesses who stated that the ribs of the injured party did not appear to have been cut with a knife but that they appeared to have been broken by some force other than by the use of a knife. It will be noted that an issue of fact was raised which the jury decided adversely to her. Under the facts as disclosed by the record, this court would not be authorized to interfere with the verdict of the jury and the judgment of the court based thereon.

No other question being presented for review, the judgment of the trial court is affirmed.

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.

ON MOTION FOR REHEARING.