Harris v. State , 106 Tex. Crim. 539 ( 1927 )

Taking issue with what we said in our opinion, appellant asserts in his motion for rehearing that his application for continuance described what he expected absent witness Nichols to testify, as facts and not conclusions. This matter seems to solve itself by quotation of what the application sets forth as the expected testimony of said witness. Suppose witness present and on the stand and asked: "Did Reed without provocation assault this defendant?" Also, "Was Reed the aggressor in the transaction out of which this indictment arose?" Or this: "Was the defendant in said transaction acting solely to protect himself?" Or the following: "Was he acting solely to protect his life and his body from serious bodily harm?" Or this: "Was this defendant not at any time the aggressor?" Or either of the following: "Did Reed bring on the difficulty?" "Did Reed provoke the difficulty?" "Did Reed assault defendant in a violent manner?" "Was defendant in said transaction entirely on the defensive?" We have presented in these quotations all of the supposed "facts" stated in the application as expected to be proved by the absent witness save and except the single fact that Reed "cursed and abused this defendant." Inspection of each of the quoted statements, save the last one, discloses that same does not call for an answer which is a fact, but an answer which is merely a conclusion. We have no means of knowing whether the language quoted in the motion referred to in Baker v. State, 280 S.W. 781, was the language of the application for continuance in that case, or the language of this court in referring to said application. Nothing in the opinion therein indicates that we intended to quote from the application. We are unable to agree with appellant in this regard.

We are still of opinion under the facts that a charge telling the jury that appellant had the right to defend himself against an unlawful attack, and to use all force necessary to repel such attack, viewing same from his standpoint and his alone — was sufficiently comprehensive.

Appellant argues at length that in furnishing to the jury forms for possible verdicts and failing to furnish one for simple assault, the learned trial judge fell into error. He contends that the issue of simple assault was involved, and that the bill of exceptions reserved to the admission in evidence of the scars resulting from the wounds inflicted upon the injured party, was approved with the statement that said evidence was admitted for the purpose of showing the seriousness of the assault, and that this establishes the fact that the issue of simple assault was in the case, arguing that unless the evidence as to the scars aided in solving the question as to whether the wounds inflicted amounted to serious bodily injury or not, same served no useful purpose and was inadmissible — and that being admitted for the purpose of aiding in solving the issue of the seriousness of the wounds, made certain the fact that that issue was in the case, and hence the court should have submitted the law of simple assault. We have always held that when forms of verdicts are submitted, forms for all verdicts permissible in the case should be given. Stuckey v. State, 7 Tex.Crim. App. 179; Williams v. State, 24 Tex.Crim. App. 637; Thomas v. State,55 Tex. Crim. 298. However, we do not follow appellant's logic in regard to this contention. A butcher-knife might be offered in evidence in a given case to show that the weapon used was a deadly weapon. So with an axe, a sledge hammer, a gun, etc. The offer in evidence of such proof would not necessarily require the court to submit to the jury the issue as to whether the assault was with a weapon less than deadly. The weapon thus introduced might of itself aid in showing that the assault was made with a deadly weapon and that there existed no need for submitting the issue of the lesser offense. So we think of the results of the exhibition of the scars in the instant case. As stated by us in the original opinion, there is no serious controversy over the fact that serious bodily injury was inflicted.

Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.

Overruled.