Davis v. State , 165 Tex. Crim. 294 ( 1957 )

ON MOTION FOR REHEARING

DICE, Judge.

Appellant urges fundamental error in Paragraph 15 of the court’s charge wherein the issue of her guilt of murder without malice was submitted to the jury. In said paragraph the court in substance instructed the jury that if they found and believed from the evidence beyond a reasonable doubt that the appellant, without malice aforethought, did assault the injured party with a knife with the intent to then and there kill her, then they would find her guilty of the offense of assault with intent to murder without malice aforethought.

Appellant insists that the court’s instruction was fundamentally erroneous because it authorized the jury to convict her upon a mere finding that an assault was committed with a knife without finding that the weapon used was a deadly weapon or that serious bodily injury was inflicted.

With such contention we do not agree. Appellant overlooks the fact that under the court’s instruction, the jury was required to find, before convicting her, not only that she committed the assault with the knife but also that she committed it with the intent to kill the injured party. The specific intent to kill was an essential element of the offense. Roming v. State, 154 Texas Cr. Rep. 605, 228 S.W. 2d 160 and Hunter v. State, 161 Texas Cr. Rep. 225, 275 S.W. 2d 803. Where the weapon used is not of itself deadly the intent to kill may be ascertained from surrounding circumstances. Henry v. State, 157 Texas Cr. Rep. 88, 246 S.W. 2d 891 and Windham v. State, 162 Texas Cr. Rep. 580, 288 S.W. 2d 90. The court’s instruction requiring the jury to find that appellant not only made the assault upon the injured party but with the intent to kill her was a sufficient submission of the issue of her guilt to the jury. See 4 Branch’s Ann. P.C., 2d Ed., Sec. 1844, page 187 and cases there cited.

It is observed that the judgment entered by the court adjudges the appellant guilty of the offense of murder without malice as found by the jury which follows the verdict shown in the record to have been returned by the jury; however, the verdict as copied in the judgment recites that the jury finds the appellant guilty as charged in the indictment. The judgment is reformed and corrected to recite that the verdict of the jury finds the appellant guilty of the offense of assault with intent to murder without malice.

The motion for rehearing is overruled.

Opinion approved by the Court.