Appellant was convicted of an aggravated assault, and by the jury given a penalty of twelve months in the county jail.
The facts produced by the State show an unprovoked attack upon one Soto by means of stabbing him with a knife three times, the doctor testifying that the injuries were severe, and were serious and dangerous; one penetrated the abdomen about three inches deep.
There are but two bills of exceptions in the record.
The charge against appellant, as shown by the indictment, was an assault to murder with malice. The trial court also charged the jury upon an aggravated assault, and also relative to a suspended sentence in the event of a conviction.
Bill of exceptions No. 1 is based upon a statement claimed to have been made by one of the jurors in the discussion of the case in the jury room, in which the question of a suspended sentence was brought up, and one of the jurors, Mr. Taylor, said that one juror was in favor of the suspended sentence; that another juror spoke up and said: "We can't afford to do that because he might go to Oklahoma and do some devilment and get by with that." The juror Taylor answered that "I don't know anything about that; I am not acquainted with the law." This seemed to have ended the discussion. There must be a certain latitude allowed the jury in discussing among themselves the effect of their verdict, when they are asked to suspend *Page 302 the sentence of one found guilty of an offense by them, and we think such a discussion would naturally be concerned with the future acts of the person under discussion, as well as the effect of the action that they are requested to take in the matter of his punishment. We see nothing to cause us to base a reversal of this case upon in such statement.
Bill of exceptions No. 2 is based upon a further statement of the same juror, Mr. Taylor, in which he said that some juror made the statement that "the Mexican race would take kitchen knives and throw them from childood on up. * * * that the Mexican race carried knives * * * they would learn how to throw them and stick them in some object," the contention of appellant being that this statement showed that such juror was prejudiced against the Mexican race as such.
The statement of facts is rather meager, consisting of but a single page, and the testimony of the injured person, a Mexican so one would infer from his name, is short, and we quote the same in its entirety:
"Sequndo Soto testified that he was in Lupe Moya's place about 7:30 P. M. on the 3rd day of June, 1941, when he was attacked without cause by the defendant Pedro Garcia; that the attack was made with a knife, and he was stabbed three times; that the worst injury was a stab on the left side which he still suffers from and which caused him to have to go to the hospital; that that attack was made without cause after the witness had interceded in behalf of another Mexican boy whom Pedro Garcia was attacking, and who was much smaller than Pedro."
The difficulty is shown to have taken place in Lupe Moya's place, evidently another Mexican, and was based on a previous trouble with one Pedro, evidently another Mexican, and every witness, save the doctor treating the injured person, was of Mexican origin, judging by their names.
The knife used by appellant, according to the testimony, was not thrown but used to stab with; there was no denial that he had such knife, and that he stabbed the prosecuting witness, appellant himself admitting such cutting, but claiming that the injured party also had a knife and was trying to cut appellant therewith.
We do not think any error is shown. *Page 303
The judgment is therefore affirmed.
ON MOTION FOR REHEARING.