Sheffield v. State , 151 Tex. Crim. 334 ( 1947 )

BEAUCHAMP, Judge.

The appeal is from a conviction for assault to murder without malice in which the jury assessed a three-year penalty.

Appellant and Rosetta Butler were friends and had been associating together prior to this trouble, but she had withdrawn her affections because, as she explained, she learned that he was a married man. In the late afternoon he accosted her on the street and told her that her brother wanted to see her. It is in evidence, too, that he was insistent in attempting to force her into a saloon nearby. Her resistence, according to his statement, was emphasized with a small knife which she drew from her purse, but this was denied by the prosecutrix. Regardless of how their trouble arose, it was but a brief period after he approached her until he slashed her throat with his knife, severing both jugular veins. She was given immediate treatment, including a transfusion, which saved her life.

The conflict in the testimony was for the jury to settle and brings nothing for our consideration.

Appellant has three bills of exception. The first one is in question and answer form without a certificate of necessity therefor by the trial judge. For this reason it cannot be considered. Vernon’s Ann. C. C. P., Art. 667, Note 23; Green v. State, 160 S. W. (2d) 940; Austin v. State, 187 S. W. (2d) 222; Lerma v. State, 200 S. W. (2d) 635; DeLeon v. State, 201 S. W. (2d) 816.

By Bill of Exception No. 2 complaint is made of the failure of the court to charge on aggravated assault. The bill is qualified by the court to show that no written objections or exceptions were filed to the court’s charge before same was read to the jury. Under such condition this bill cannot be considered. Vernon’s Ann. C. C. P., Art. 658, and annotations thereunder.

By Bill of Exception No. 3, appellant complains of jury . misconduct in that they were allowed to separate from each other. If the facts in the case are deemed sufficient to constitute separation, it was but momentarily and no opportunity appeared to have existed for anyone to communicate with them. We are of the opinion that no injury was shown by this bill. See Article 668, Vernon’s Ann. C. C. P., note 4.

Finding no error which we are permitted to consider, in the state of the record, the judgment of the trial court is affirmed.