Opinion
No. 12391.
Delivered March 20, 1929. Rehearing denied May 1, 1929.
1. — Assault to Murder — Declarations of Accused — Properly Admitted in Evidence.
Immediately following the assault and while still present at the scene thereof, appellant told the assaulted party that he would see him in his grave before tomorrow. Such statement certainly reflects the character of the assault, and the malice of the accused, and would be admissible whether they were res gestae or not.
2. — Same — Continued.
And testimony to the fact that the injured party was taken to a hospital, and the result of the examination of his injury and expert testimony of a physician as to the extent of the wound, and the character of the weapon used was also properly admitted.
3. — Same — Bill of Exception — Incomplete — Presents No Error.
Where a bill of exception complains of a conversation admitted in evidence, but does not set out what the conversation was, such bill cannot be appraised.
4. — Same — Evidence — Cross-Examination of Injured Party — Properly Excluded.
There was no error in refusing to permit the injured party to say on his cross-examination whether or not he had any occasion to perform any official duties in connection with the defendant, which might have caused the latter to have unkind feelings toward him. We do not think the excluded testimony was material.
5. — Same — Indictment — Name of Injured Party — Idem Sonans.
Where an indictment charged an assault upon "Emet" Thornton, and the testimony showed that the injured party spelled his given name "Emmett," there was no variance.
ON REHEARING.6. — Same — Motion for Rehearing Withdrawn.
Appellant files with the record in this case a written and sworn request asking that he be permitted to withdraw his motion for rehearing. It being in substantial compliance with his request, the motion for rehearing will be overruled.
Appeal from the District Court of Hopkins County. Tried below before the Hon. Grover Sellers, Judge.
Appeal from a conviction for an assault to murder, penalty ten years in the penitentiary.
The opinion states the case.
J. O. Duncan of Sulphur Springs, for appellant. A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for assault to murder; punishment, ten years in the penitentiary.
The facts in this case seem sufficient to support the, judgment. They show an unprovoked assault with a deadly weapon upon the injured party, who was the county attorney of his county. Appellant is shown to be a man who was frequently in trouble in the courts, and that he had indicated his belief that the county attorney was advising and instigating some action taken by the officers against him, appellant. On the occasion in question the county attorney and a friend were in a drug store, at the fountain. Appellant drove up on the outside, was observed to have a knife, open it and drop it opened in his pocket, then go into the drug store. He passed the county attorney and his friend as he went to the back part of the store and presently came back by and as he did so he threw one arm around the county attorney's neck and stabbed him in the breast just above the heart with a keen pointed knife having a blade approximately three inches in length. The fact that the blade of the knife struck a rib probably saved the life of the officer.
There can be no possible objection to a statement made by appellant immediately following the assault and while still present at the scene thereof in which appellant told the injured party that he would see him in his grave before tomorrow. Such exclamations certainly reflect the character of the assault and the malice of the accused. Such statements would be admissible whether they were res gestae or not. Nor can there be ground for objecting to testimony of the fact that the injured party was carried to the hospital and the result of the examination of his injury, even though transpiring out of the presence of the accused. Nor is there any doubt of the proposition that the physician, who had testified as to the distance from the skin of a man's body into his heart, and to the length of the blade of a weapon shown him, — could testify that such weapon in the hands of an able-bodied man stabbling another in the breast, would reach the heart or a vital organ in the body. Bill of exceptions No. 6 states that the court overruled appellant's objection to a conversation referred to, but does not set out in the bill what the conversation was.
The county attorney while on witness stand was asked if he had had any occasion to perform any official duties in connection with the defendant which might have caused the latter to have unkind feelings toward him. The objection made to this was that it was immaterial and prejudicial. We do not think it was immaterial, nor that the prejudice, if any, resulting from the answer would be of an illegal character.
We find no error in the bill of exceptions complaining of the fact that the indictment charges an assault upon "Emet" Thornton and the testimony showing that the county attorney spelled his given name "Emmett."
We have considered each error complained of and being unable to agree that any of them are of serious import, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.
Appellant files with the record in this case a written and sworn request asking that he be permitted to withdraw his motion for rehearing herein. It being in substantial compliance with appellant's request, the motion for rehearing will be overruled.
Overruled.