Jones v. State , 134 Tex. Crim. 531 ( 1938 )

Appellant in his motion complains of the fact that the State failed to prove that the knife used in the assault upon prosecuting witness was a deadly weapon.

Mr. BRANCH in his Penal Code, page 934, Section 1587, says:

"The wounds inflicted upon the person assaulted will be looked to in determining whether or not the pistol, knife or other weapon used, was a deadly weapon, and proof that the wounds thereby inflicted were of a serious nature and of the size and weight of the weapon, or either, and of the manner of its use may be sufficient to show that the weapon as used was a deadly weapon," citing numerous cases.

The instrument with which the complaining witness was cut made a laceration about three inches long. It went into the abdominal wall and into the stomach and released the contents of the stomach into the abdominal cavity, and allowed his intestines to protrude. The physician attending the injured party testified that such was a serious wound and might have produced death, the result usually depending on the patient's resistance. It seems to us that the results of the operation of this knife was sufficient to show its deadly character.

Neither do we think it fundamental error, as urged by appellant, to allow the State to prove by the appellant that he was tried and convicted in Oklahoma in 1927 for murder; he was tried in Travis County, Texas, in 1930 for burglary and sent to the penitentiary; he was tried in Travis County in 1931 for burglary and convicted, and tried in Travis County in 1932 for theft from the person.

In the first place, we do not think the error, if such there was, would be fundamental; in the second place, the general doctrine is when the evidence shows that defendant did not reform, but had a chain of felony convictions against him, he may be impeached as a witness by proof of such convictions. In the Burrell Oates case, 149 S.W. 1194, in a similar matter, the trial court admitted testimony of a homicide nineteen years past, and another twelve years old, qualifying the bill by saying: "There does not appear to have been any very successful efforts at reformation which would make it improper to admit this proof for impeachment." This Court approved such a doctrine. There was no error in such action herein. It is also to be noted that appellant offered no objection to the action of the court relative to the proof of such other offenses.

The motion will be overruled.