Yeager v. State , 109 Tex. Crim. 213 ( 1928 )

Offense assault to murder, penalty fifteen years in the penitentiary.

The facts briefly stated sufficient to illustrate the legal points discussed are as follows:

The appellant took prosecuting witness, Dorothy Bronson, to a resort called "Shadowland," near San Antonio, where some drinking occurred, after which they returned to the house of a friend, appellant at the time being very drunk. Here prosecuting witness testified that appellant pulled out a small pocket-knife with a blade about two and a half inches long and cut her three times. She afterwards testified that she would not say that the knife, blade and all, was longer than two inches, as she only got a glimpse of it. Appellant testified that the length of the knife, blade, handle and all, was about one and three-quarters inches, the blade about three-quarters of an inch, and that the knife was made to put on a watch chain. He testified:

"At that time I had this little gold knife off my chain and was cleaning my finger nails, and when I said I was going back after Dorothy McCann, she called me a s__ of a b____ and hit me and I cut her before I thought. * * * I did not have to stoop over. I don't know what I did. * * * After she slapped me, I cut her, they say three times, I don't even remember."

Prosecuting witness' testimony shows that the assault of appellant was an unprovoked and wanton one.

Dr. Pipkins testified that he dressed the wounds of prosecuting witness. That she had three cuts, one behind the left ear, extending down about seven inches, about a quarter of an inch deep; another across the side and abdomen about six inches long and about half an inch or three-quarters of an inch deep. After so testifying, Dr. Pipkin was asked by the state:

"Doctor, I will ask you to state whether or not a knife with a blade from one inch to two inches long, in the hands of this defendant or a man of his size, used on a girl the size of Dorothy Bronson, that the evidence shows weighs 118 pounds, whether a knife of that character is capable of producing death."

To which, over objection, the witness replied in the affirmative. Many objections were urged to this question and the answer, among them being that it was not the subject of expert evidence and that it did not include the proof as to the nature and location of the wounds and what might or could be done with a weapon is not the test.

An expert medical witness cannot give his opinion upon a matter about which the jury are as capable of judging as he is nor upon any issue which the jury are impaneled to try. It would seem, however, that a physician familiar with human anatomy, the structure of its tissues, the depth below the surface of its vital organs, and the protection over each of them in the way of bones or muscles, is qualified and ought to be permitted to give an opinion as to whether a described instrument in the hands of a certain person is capable of causing death. Certainly this is a matter that the jury could not know about. In another form the question amounted to no more than whether or not the knife described could penetrate to a vital organ so as to cause death. Under the peculiar facts of this case this seems to have been made an issue. Certainly if the appellant was attacking with a weapon that was capable of penetrating to and severing or entering some vital organ, it was a potent circumstance against him which the jury were entitled to know, but if on the other hand the attack was made with an instrument not capable of producing death, both because of its size and the structure of the human anatomy, it will bear strongly on the issue of his lack of intent to kill. Under the facts of this case there was, in our opinion, no error in the court's action. Hardin v. State, 51 Tex.Crim. Rep.; Underhill's Crim. Ev. (3rd Ed.), Sec. 193; Svidlow v. State,90 Tex. Crim. 510.

Exception was reserved to the refusal by the trial court to permit the following question to be answered:

"Doctor, the knife used in the hands of Otis Yeager to make that cut, as used in making that cut, was it used as a deadly weapon?"

The refusal to permit an answer to this question was proper. One of the instructions by the court to the jury was as follows:

"If the instrument be one not likely to produce death, it is not to be presumed that death was designed unless from the manner in which it was used such intention evidently appears."

One of the indispensable elements of assault to murder is the specific intent to kill, which under the instructions of the court might be found from the manner in which the instrument was used with which the assault was made. The above question clearly called for a conclusion upon an issue to be tried by the jury. This would, in effect, be asking the opinion of the witness upon one of the issues of the case on trial, which is never permissible. Underhill's Crim. Ev. (3rd Ed.), Sec. 187. Hunt v. State, 9 Tex.Crim. App. 166.

Various complaints are made with reference to the failure to properly charge self-defense and the improper references to self-defense contained in the court's charge. We do not think the evidence, fairly considered, raised the issue of self-defense. Appellant himself testified that after he was hit or slapped "he struck her before he thought." She had slapped him, after which he cut her, but there is no testimony to show that she was making any further attempt to attack him or that he believed that she was or that it reasonably so appeared to him or that he believed he was in any kind of danger. On the contrary he claims he stabbed her without thinking. This disposes of all these various contentions as any reference to self-defense in the court's charge or any charge upon self-defense would be favorable and not prejudicial to the accused. If there is testimony raising any issue of self-defense, it is too remote and trivial to justify its submission. Navarro v. State, 43 S.W. 106. Burton v. State,148 S.W. 805.

The court instructed the jury:

"Now, if you believe from the evidence in this case, or have a reasonable doubt thereof, that the defendant, at the time of the commission of the offense for which he is on trial (if you find him guilty of such offense), was laboring under temporary insanity as above defined, produced by the voluntary recent use of ardent spirits, or by being struck in the face, or by a combination of both said causes, you will take such temporary insanity into consideration in mitigation of the penalty attached to the offense for which the defendant is on trial."

Appellant excepted to said charge, the substance of which is that if said intoxication and the blow rendered appellant temporarily insane, he was entitled to be acquitted and the jury should have been so instructed. A sufficient answer to this is that the record in this case does not raise the issue of temporary insanity so as to justify any such charge. The said charge was more favorable to the appellant than he was entitled to and to go further and instruct that he was entitled to an acquittal would be unauthorized by the evidence and unsupported by any legal authority of which we are aware.

Believing that the evidence is sufficient and that no prejudicial error was committed, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.