Stevens v. State , 27 Tex. Ct. App. 461 ( 1889 )

White, Presiding Judge.

There were two counts in the information upon which this conviction was had, viz: One for an aggravated assault committed with a deadly weapon, and one for an aggravated assault, by which serious bodily injury was inflicted. In our opinion neither of these counts has been established by the evidence as disclosed in the record before us.

The only evidence as to the character of the weapon used is that “it was a good sized walking-stick, made of Bois d’Arc and loaded.” Defendant’s witness testified that “the walking-stick was a fair sized walking-stick.” There is no evidence that it was a deadly weapon.

As to the injury inflicted, the injured party, Blasdell, testified that when he was struck again over the eyes, this last blow partially stunned him and defendant ran off. The other State’s witness says the lick over the eye cut the skin. Another witness saw Blasdell wipe blood from his forehead. This evidence is insufficient to show serious bodily injury.

Under the circumstances developed by the evidence adduced at the trial, we are further of opinion that a new trial should have been awarded on defendant’s application for a continuance. We think the application showed sufficient diligence in the first place, and the materiality and probable truth of the proposed testimony in the light of the other testimony is, we think, unquestionable. The judgment is reversed and the cause remanded.

Reversed and remanded.