Hardy v. State , 36 Tex. Crim. 400 ( 1896 )

Appellant was convicted of an assault with intent to murder, and given two years in the penitentiary, and prosecutes this appeal. This is a companion case to the case of Thompson v. State, decided at the last Austin term. See, 36 S.W. Rep., 265. Defendant's first bill of exceptions is as to the answer of Dr. Miller to the effect that an ordinary razor, such as used for shaving, in the hands of a man of defendant's size and strength, is a deadly weapon. The objection was that this testimony substituted the opinion of another for that of the jury. Whether or not a weapon is a deadly weapon can be proved by its size and character, and the manner in which it was used. The judge's explanation, however, to appellant's bill of exceptions, shows that this question was not answered, and the matter was not before the jury. The charge of the court as to what constituted a deadly weapon, in connection with the charge on assault with intent to murder, is as follows: "If the defendant, with a deadly weapon or instrument calculated and likely to produce death or serious bodily injury from the manner in which it was used, and with malice aforethought, did assault * *, then he would be guilty of an assault with intent to murder." The objection here made is that the charge as to a deadly weapon was in the alternative, and made an instrument reasonably calculated and likely to produce death or serious bodily injury from the manner in which it was used a deadly weapon. Such we understand to be a proper definition of a deadly weapon. It is also complained that the court failed and refused to give the charge asked by defendant on aggravated assault. The court gave a charge on aggravated assault, covering all of the issues raised by the evidence in the case, and presenting every ground upon which the charge asked was predicated, and it was not necessary for the court to give said requested charge. The court gave in charge to the jury the principle announced in the companion case of Thompson v. State, supra, presenting the law of the case when a prisoner confined in jail makes an assault upon the jailer with intent to kill him, if necessary, in order to effect his escape; and the question whether or not the assault alleged in this case was of that character, or whether it was made with less intent, and constituted merely an aggravated assault and battery, was properly presented to the jury in the charge of the court. The jury found the defendant guilty of an assault with intent to murder, and the evidence amply sustains their verdict. The judgment is affirmed.

Affirmed.

HURT, Presiding Judge, absent.