Jones v. State , 28 S.W.2d 146 ( 1930 )

LATTIMORE, J.

Conviction for assault to murder; punishment, two years in the penitentiary.

Appellant was charged in proper form with assault to murder Daisy Newman. The facts show that on the night in question there was a fight between the two women, ana that appellant used some sharp instrument and inflicted a wound upon Daisy Newman, bringing blood. The record does not contain any testimony shedding light upon the size, kind, or character of the sharp instrument used by appellant, nor is there any testimony that the wounds inflicted upon Daisy Newman were serious, or that they amounted to serious bodily injury. She was taken to a hospital and given treatment, but came back downtown the same night and was at her work the next day. The learned trial judge declined to charge the law of simple assault. The state’s attorney with this court in his brief' admits that the evidence is insufficient to justify a conviction for assault with intent to murder. We are inclined to agree with him. We think the court should have charged on simple assault under the facts.

The judgment is reversed, and the cause remanded.