Summary
In Silva v. State, 215 S.W.2d 887, this Court held that, though not licensed, a physician with sufficient qualifications might testify as an expert witness.
Summary of this case from Cordero v. StateOpinion
No. 24205.
December 22, 1948.
1. — Serious Bodily Injury — Defined.
Serious bodily injury is one which gives rise to apprehension, or is attended with danger.
2. — Verdict — Serious Injury — Undisturbed.
Where jury found that injury, consisting of a severe wound on thigh, ten inches across the leg, and which severed a large artery and several important muscles and injury interfered with injured party's kneeling down, was a serious injury, the verdict would not be disturbed.
3. — Charge — Misdemeanor — Objection — Must Submit Correct Charge.
In a misdemeanor case it is not sufficient to merely object to the court's charge, but accused must go further and submit a correct charge on the subject.
4. — Witness — Not Licensed Physician — Testimony Not Excluded.
The fact that witness was not a licensed physician would not authorize the court to exclude his testimony, and the objection was more to the weight than to the admissibility of the testimony.
5. — Witness — Expert — Qualification.
The question of whether the witness is sufficiently qualified to express an opinion as an expert on a question involving scientific knowledge is a matter for the court to determine after learning witness' training, education and experience.
Aggravated assault. Appeal from County Court at Law of El Paso County; penalty, confinement in county jail for one year.
Hon. M. V. Ward, Judge Presiding.
Affirmed.
Fryer Milstead, of El Paso, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Appellant was convicted for the offense of aggravated assault and his punishment was assessed at confinement in the county jail for a period of one year.
It was charged in the complaint and information that on the 13th day of December, 1947, appellant, in the County of El Paso, State of Texas, did unlawfully commit an aggravated assault upon Miguel Navarro by then and there cutting, striking, and stabbing him with a knife, and did thereby inflict upon Miguel Navarro serious bodily injury.
Appellant challenges the sufficiency of the evidence to sustain his conviction. The record reflects that appellant did cut the injured party with a pocket knife inflicting several minor wounds and one severe wound on the thigh of one leg which severed a large artery and several of the most important muscles. The injured party was taken to the county hospital for medical treatment where he remained under the care of a physician four days and then he was taken to a hotel where Dr. Miller put the leg in a cast; that as a result of the injury to his leg he could not kneel down very well. The cut was ten inches across the leg, extending nearly to the bone.
In his charge, the court instructed the jury what would constitute a serious injury; "that it was such an injury as would give rise to apprehension, or attended with danger." This definition has been approved by this court as being correct. Under the facts of this case and the court's instruction of what constitutes a serious injury, the jury found that the injury inflicted by appellant on his victim was a serious injury and the jury's verdict, under the facts of this case, is binding on this court. See Svidlow v. State, 90 Tex.Crim. R. ( 236 S.W. 101).
Appellant brings forward four bills of exception. By Bill of Exception No. 1 he complains of the action of the trial court in declining to instruct the jury to return a verdict of not guilty. We perceive no error in the court's action in this respect.
Bills of Exception Nos. 2 and 3 complain of the action of the court in not responding to his objections to some portion of the court's charge, and particularly to the charge on self-defense. The bills fail to show reversible error. This was a misdemeanor case and a mere objection to the court's charge was not sufficient. He had to go further and submit a correct charge on the subject. See Tex. Jur., Vol. 4, page 74, Sec. 47, where many authorities on the subject are cited.
Bill of Exception No. 4 merely states that he objected to the testimony of Dr. Zingher on the ground that he was not qualified since he is not a licensed physician. We think the mere fact that he did not have a license would not authorize the court to exclude his entire testimony. It occurs to us that the objection went more to the weight of the testimony than to its inadmissibility. However, the question of whether or not a witness is sufficiently qualified to express an opinion as an expert on a question involving scientific knowledge is a matter for the court to determine after the witness has stated the time devoted to the study of that branch of science, his training, and experience. When the court is satisfied that the witness is qualified, then he is permitted to testify, unless it is shown that the court abused his discretion with respect thereto.
From what we have said, it follows that the judgment of the trial court should be affirmed and it is so ordered.
Opinion approved by the Court.