The indictment was for assault with intent to murder; the conviction is for aggravated assault; punishment fixed at a fine of $500 and confinement in the county jail for a period of two months.
The altercation between the appellant and Henry Krull, in which the latter was injured, took place in the presence of a number of witnesses. According to the undisputed evidence, Krull was struck by the appellant with a stick about four feet long and about one or one and one-fourth inches in diameter. Two blows were struck — one on the head and the other on the back or side. Krull was knocked down and his skull fractured. He was unconscious for six days and confined to his bed for about three weeks. He was suffering from the wounds at the time of the trial, which took place some five months subsequent to the injury. The parties had assembled to do some work on a bridge. The appellant used abusive language toward Krull, who replied in kind. Krull, like some of the others present, had an axe for use in the work. Appellant's testimony, supported by some of his witnesses, was to the effect that at the time of the assault, Krull made a demonstration indicating an intent to strike the appellant with an axe. This was controverted by other eye-witnesses who testified on behalf of the State.
The issues of fact were submitted in a charge of which there is no complaint made, and no reason is advanced by the appellant nor discerned by the court for overturning the verdict of the jury in behalf of the State. The injury was a serious one, and the punishment was not out of proportion to the offense. Teague v. State, 4 Texas Crim. App., 147; Handy v. State, 46 Tex. Crim. 407; Wagner v. State, 87 Tex.Crim. Rep..
The judgment is affirmed.
Affirmed. *Page 430
ON REHEARING February 14, 1923.