Rose v. State , 123 Tex. Crim. 261 ( 1933 )

It was appellant's contention that the knife used by him in cutting Lewis was a much smaller knife than the one claimed by the state to have been used. Because of this conflict in the evidence, appellant says: (1) He should have had some kind of instruction based upon the use of the smaller knife; and (2) he seems to insist that in no event could he be guilty of assault with intent to murder unless the instrument used by him was a deadly weapon.

As to the first proposition, the evidence is undisputed that the wounds inflicted were serious in their nature, regardless of the particular knife used. The trial judge required the jury to find beyond a reasonable doubt that appellant had the specific intent to kill before he could be convicted of assault with intent to murder. No special charge was requested by appellant attempting to present his theory of the use of a smaller knife, but he contented himself with an exception to the instruction given on the ground that it failed to present his affirmative defense. The only affirmative defense we find was that of self-defense, which was properly submitted.

On the second proposition, appellant is mistaken as to the law. In the recent case of Basquez v. State, 114 Tex. Crim. 602,26 S.W.2d 206, the following language was quoted with approval from Franklin v. State, 37 Tex.Crim. Rep.,38 S.W. 1016: "In passing upon the intent of the party, the jury should look to the character of the weapon. If the weapon was a deadly weapon, and likely to produce great bodily harm, the jury may infer, from the use of such weapon, the intent to kill. If the weapon was not such a weapon, the jury may arrive at the intention of the party from the surrounding facts. If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder."

In Hatton v. State, 31 Tex.Crim. Rep., 21 S.W. 679, this court also said: "It would be a monstrous doctrine to hold that, because in fact the accused did not have the ability to kill, therefore he did not intend to kill."

See, also, Jackson v. State, 48 Tex.Crim. Rep.,90 S.W. 34, and Wallace Bailey v. State (No. 15,586), this day decided.

The motion for rehearing is overruled.

Overruled.