Conviction is for aggravated assault and battery, the punishment being nine months imprisonment in jail.
Appellant sought a continuance on account of the absence of the witness Nichols. It is conceded by the state that proper diligence is shown to secure the attendance of this witness but insists that if the witness had been present he would not have been permitted to testify to the things set out in the application for continuance because they are conclusions only and not statements of any fact. We are inclined to believe this criticism of the application is well founded. Nowhere in the application is it averred that Nichols would have testified that he was present and saw the difficulty. It is not stated that witness would have testified to any fact from which the jury might have drawn conclusions but only that witness himself proposed to testify to conclusions.
Appellant devotes several pages of his brief to discussion of the refusal of a requested special charge which was designed to advise the jury of his rights where there was more than one *Page 542 assailant. This charge is only marked "refused." There is no notation on it over the judge's signature showing that any exception was reserved to its refusal, and no separate bill is found bringing the question forward for review. It is essential that complaint of the refusal of a special charge be preserved by exception in one of the ways mentioned. Linder v. State,94 Tex. Crim. 316, 250 S.W. 703; Bland v. State, 92 Tex. Crim. 636, 244 S.W. 1023; Cunningham v. State, 97 Tex. Crim. 624, 262 S.W. 491. We regret that this matter cannot be considered.
Appellant was indicted for assault to murder one Reed. The state conceded that the felony charge could not be sustained and aggravated assault only was submitted. The court defined assault and informed the jury that it would become aggravated when serious bodily injury was inflicted. (Sec. 7, Art. 1147, P. C., 1925.) In applying the law the court told the jury in substance that if they found from the evidence that appellant committed an aggravated assault upon Reed by inflicting upon him seriously bodily injury, appellant would be guilty of an aggravated assault. Objection was urged to the form of the charge. Under the facts we think appellant could not have sustained injury thereby. That appellant cut Reed several times with a knife seems to have been a conceded fact, and there was no issue raised but that one stab went into the lungs and was quite serious. We are forbidden to reverse a judgment upon instructions given or refused unless an error is shown which was "calculated to injure the rights of defendant." What we have just said applies also to the criticism of the charge on self-defense. Taking the instruction upon that subject in its entirety we think the objections are not meritorious and that the jury could not possibly have been misled thereby to appellant's hurt.
The court furnished the jury with four forms of verdict, one providing for finding appellant not guilty, the other three providing for finding him guilty of aggravated assault and battery and for assessing the punishment by fine only, or by fine and "imprisonment in jail — months," or for only "imprisonment in jail — months." Objection was made because no form was furnished for a verdict of simple assault. This issue was not submitted, hence no necessity for a form of verdict as to that offense. Another objection was that the court having used the term "months" in the forms providing for imprisonment, it was calculated to impress the jury that it was the opinion of the court that appellant's punishment should be assessed at more than one month. Our opinions are not in harmony upon the *Page 543 propriety of furnishing forms of verdict. Some hold it to be a commendable practice. Williams v. State, 24 Tex. Ct. App. 637,7 S.W. 333; Oates v. State, 51 Tex.Crim. Rep.,103 S.W. 859; Crook v. State, 27 Tex. Ct. App. 198. Other opinions discourage the practice. See Smith v. State, 280 S.W. 200; Hickox v. State, 95 Tex.Crim. Rep., 253 S.W. 823. But all are agreed that if forms are provided the court should include a form for every verdict which might be returned under the evidence and instructions of the court so as to avoid conveying to the jury any impression as to the judge's opinion as to what particular verdict should be rendered. Branch's Ann. Tex. P. C., Sec. 657. Unless the forms provided in the present case violate the latter principle the action of the court should not be held to call for a reversal. The charge advised the jury that the punishment for aggravated assault and battery might be either a fine alone, or imprisonment in jail not less than one month nor more than two years, or by both such fine and imprisonment. In view of this instruction it seems rather far fetched to conclude that because the court used the term "months" in the form of verdict the jury was impressed that the court thought the verdict should be imprisonment for more than one month. The form of verdict furnished could scarcely have been instrumental in leading the jury to hit on nine months as the punishment, rather than two, four or seven. We think the objection is more theoretical than practical.
Reed was permitted, over objection, to remove his clothing and exhibit to the jury scars left on his body by the wounds inflicted by appellant. These scars were several in number, being of an ugly and discolored appearance. The objection urged was that physicians present could testify to the nature and character of the wounds and that their exhibition to the jury tended to solve no issue in the case. This objection cannot be sustained. The state was seeking conviction of aggravated assault, based on the claims that the wounds inflicted were of a serious nature. Appellant, by his plea of "not guilty," had put the state upon proof of every material fact necessary to convict. One of these facts was the nature of the wounds. The state could establish this fact by any legitimate evidence at hand and appellant could not dictate that the state proceed in any particular manner to make out its case. The wounds exhibited enabled the jury to pass upon the question as to whether serious bodily injury had been inflicted. The fact that physicians could testify, and did later testify, that Reed was confined in the hospital ten days and that the wounds were of a serious *Page 544 nature would not render inadmissible their exhibition before the jury. We are referred by appellant to the cases of Newman v. State, 85 Tex.Crim. Rep., 213 S.W. 651, and also to Mahaney's case, 95 Tex.Crim. Rep., 254 S.W. 946, which quotes from the opinion in Newman's case where it was held that wounds upon a witness should not have been exhibited to the jury. Attention is called to the fact that Newman was convicted of manslaughter. The witness Pruett, who was permitted to exhibit wounds upon his person, was a participant in the difficulty which resulted in the death of the party killed by Newman. The holding in that case was unquestionably correct in that the exhibition of wounds upon the witness solved no issue in the case where accused was being tried for the killing of another party. The Mahaney opinion takes no note of the particular facts of the Newman case upon the point under discussion, and the quotation from the latter case is upon the general proposition relative to the exhibition of wounds. We call attention to the peculiar facts in the Newman case to avoid confusion in the application of the law to facts which may be entirely different. See also Graves v. State, 58 Tex. Crim. 42, 124 S.W. 676; Chapman v. State, 66 Tex. Crim. 489,147 S.W. 580. The principle involved in the present case is very similar to that before the court in Trigg v. State, 99 Tex.Crim. Rep., 269 S.W. 782, where the introduction of a coat worn by deceased was introduced in evidence.
Appellant became a witness and while being cross-examined he was asked by the District Attorney if he had not within the last five years been charged with "bootlegging." Appellant's attorney objected to the question, insisting that the District Attorney make it clear whether he meant a charge by complaint or indictment. The District Attorney declined to formulate his question to conform to the objection. Further inquiry elicited the information that within five years appellant had been charged by complaint with transporting intoxicating liquor and had been arrested and placed in jail on said charge, but said he had never been tried therefor. The inquiry seems to have rested at this point. The objections urged are most general being that the questions were improper, immaterial, prejudicial, confusing and misleading. It is well settled that charges by complaint of other felonies cannot be proven for the purpose of impeachment where a grand jury has intervened and the matter charged by complaint has not been merged into an indictment. Newton v. State, 94 Tex.Crim. Rep.,250 S.W. 1036; King v. State, 67 Tex.Crim. Rep., 148 S.W. 325; Wright v. *Page 545 State, 63 Tex.Crim. Rep., 140 S.W. 1105; Williamson v. State, 74 Tex.Crim. Rep., 167 S.W. 362; Redding v. State, 95 Tex.Crim. Rep., 255 S.W. 430. If this was the objection sought to be urged the bill relating this occurrence is incomplete. It fails to show that a grand jury had intervened and had returned no indictment. No objection of this kind was made. We are left entirely in the dark as to where or when the complaint referred to was filed. Under the well fixed rule that a bill of exception must on its face reveal error we must hold that such is not shown by the one now being considered.
After the evidence came in showing that appellant had been charged by complaint with transporting intoxicating liquor the court immediately told the jury orally that it could not be considered as any circumstance of appellant's guilt in the case on trial, but that if considered at all, it could only be used by them in passing upon the credibility of appellant as a witness. Fry v. State, 86 Tex.Crim. Rep., 215 S.W. 560; Fields v. State, 95 Tex.Crim. Rep., 252 S.W. 759; Terry v. State, 101 Tex.Crim. Rep., 275 S.W. 837. We find a bill which, if correctly interpreted, shows that appellant at the time did not object to the oral limitation by the court, but asked that a written instruction to the same effect be then given. This request seems to have been made orally. At least there is nothing showing to the contrary. The court was not required to stop at that point in the trial to give a written instruction in addition to what he had told the jury. No written objection was later urged to the omission from the charge of a written instruction on the point and no special charge seems to have been requested regarding the matter.
We have discussed all questions brought forward for review except a matter raised by bill of exception No. 4 relating to placing witnesses under the rule. This point is not briefed. However, we have examined the bill and think it presents no error.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.