Thompson v. State , 144 Tex. Crim. 321 ( 1942 )

Appellant insists that, under the facts, he was guilty of no higher grade of offense than simple assault, and that we erred in concluding to the contrary.

It will be remembered that the charge against appellant was that of murder. His conviction for aggravated assault resulted from and under such accusation and trial for that offense.

Under a charge of murder, the issue of aggravated assault is raised when the instrument with which the injury resulting in death is not a deadly weapon per se, and when, in addition thereto, the evidence raises the issue of a lack of intent on the part of the accused to kill. Barnett v. State, No. 22,044, decided June 3rd, 1942 (Page 249 of this volume); Miller v. State, 13 S.W.2d 865, 112 Tex.Crim. R.; Bookman v. State,16 S.W.2d 123, 112 Tex.Crim. R.; Johnson v. State,68 S.W.2d 202, 125 Tex.Crim. R..

The facts bring this case within the operation of the rule stated, for here the instrument used, being appellant's fist, was not a deadly weapon per se, and the use thereof was sufficient to show a lack of intent on his part to kill.

The undisputed evidence shows that death resulted from the injury inflicted by and with the appellant's fist. There was no intervening cause such as existed in the Flournoy and Calvert cases, cited in our original opinion.

We remain convinced that the case was correctly disposed of originally. The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.