In his motion for a rehearing appellant claims that we erred in the original disposition of this case because we declined to sustain his contention that the trial court failed to affirmatively *Page 524 instruct the jury that if they believed from the evidence that defendant did not have the specific intent to kill the deceased at the time he stabbed him, or if they had a reasonable doubt thereof, they could not convict him of murder, and in declining to give appellant's special charge to that effect. He earnestly insists that since the court charged the jury that if the defendant, with intent to kill, did cut and kill the deceased he would be guilty of murder, consequently he was entitled to an affirmative instruction as requested. If appellant had not cut the deceased in a most vital part of the body and had testified that he had no intent to kill him, there might be some merit in his contention, but after carefully reading his testimony as the same appears in the record, we failed to find any evidence as to what his intention was. In the absence of any proof relative thereto his intention must be determined from the means employed and the manner of its use, as well as the seriousness of the wounds inflicted. In support of his assertion appellant cites us to the case of Briscoe v. State,56 S.W.2d 458, as sustaining his contention. We think that the Briscoe case is readily distinguishable from the instant case upon the facts. Briscoe cut the deceased in the leg, ordinarily not a vital part of the body, and he testified that when he cut him he had no intent to kill the deceased; that he had no knowledge as to where the large veins and arteries are located in the human body. It will be noted that in that case the intent of Briscoe was made an issue; hence he was entitled to an affirmative instruction thereon, but in the case here under consideration appellant cut the deceased in a most vital part of the body. He disemboweled him and at no time while testifying did he claim that he did not intend to kill the deceased. Hence the trial court did not err in failing to give appellant's requested instruction or one of like import.
Appellant also asserts that we erred in declining to sustain his bill of exception relating to the action of the trial court in permitting the District Attorney, on direct examination of the State's witness, Benevides, to ask him the following questions:
"Did you know Esa Hernandez during his lifetime — the boy that got killed?"
"Who is this boy they call Tony — is his real name Esa Hernandez?" *Page 525
To each of which the witness answered "Yes." Appellant objected to the questions on the ground that they were leading and suggestive of the answer desired. The bill fails to show error on the part of the trial court. There are quite a number of exceptions to the rule which forbids the asking of leading questions, and unless the bill affirmatively shows that the same do not come within any of the exceptions, it is insufficient. See Branch's Ann. Tex. P. C., p. 91, sec. 159. In the instant case, the bill fails to show that the witness was not an unwilling or hostile witness, etc. See Carter v. State, 59 Tex.Crim. R. (75); Hamilton v. State, 41 Tex.Crim. R. (601).
Having reached the conclusion that the affirmance of the judgment in this case was authorized from the record before us, the motion for rehearing is overruled.
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.