Cruiz v. State

MORROW, Presiding Judge.

Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for three years.

O. E. Oliver was cut with a knife in the hands of the appellant. The wound was serious, as shown by the testimony of Oliver and the doctor who attended him. The weapon used was a knife. According to the testimony, the jury was justified in concluding that, in the manner used, the knife was a deadly weapon.

At nighttime, three ladies and a small child were in an automobile which was parked near the highway. They had been at an entertainment together with their husbands. The men in the party walked across the street to get some refreshments. During the absence of the men, the appellant indulged in extremely insulting conduct towards the women, and forceably entered the car under circumstances indicating that his intent was a criminal assault. The witness Woods and a companion, who were passing, observed the situation and approached the car. Appellant moved off some distance. While the women were relating to Woods the conduct of the appellant, the men returned. Upon being informed of the conduct of the appellant, Oliver approached him and demanded an explanation, whereupon he was assaulted by the appellant and stabbed with a knife. According to the testimony of Woods, after the assault upon Oliver, he (Woods) struck the appellant with his fist, knocked him down, and made an unsuccessful effort to detain him.

Appellant denied any assault or improper conduct towards the ladies and claimed that while crossing the street he was struck and knocked down by Oliver, and what he did was done in defense of his person.

Appropriate instructions upon the law of assault with intent to murder and aggravated assault were given to. the jury. What we deem an unexceptionable charge on self-defense was delivered to the jury, including the following: “Where there is more than one assailant, the defendant has the right to act upon the hostile demonstration of either or all of them and to kill either of them if it reasonably appears to him that they are present and acting together to take his life or to do him serious bodily injury.”

Appellant requested, and the court gave, the following charge: “In connection with the court’s charge on the law of aggravated assault you are further instructed that if you believe the witness Woods knocked the defendant down immediately preceding the alleged assault by the defendant upon Oliver, that such assault by the said Woods would justify the defendant in using any force, viewed from his standpoint, that may have been necessary to repel said assault.”

Appellant requested, and the court refused, the following charge:

“You are instructed that if you believe from the evidence that the defendant committed the assault upon Oliver, then if under the surrounding facts and circumstances he believed that he was about to be injured by the said Oliver or some other person who may have been present with him, you will find the defendant not guilty.

“And in this connection you are further instructed that although you may find there may have been no real danger to the defendant from any of the four men who he stated were present at the time of the cutting of said Oliver, if he did cut him, you will find the defendant not guilty if from the surrounding facts and circumstances, viewed from the defendant’s standpoint alone, there was apparent danger to him.”

. From an examination of the case, we are led to believe that the evidence is sufficient to support the verdict; that by the instruction given the rights of the appellant were adequately protected, and that in the refusal of the special charges no error was committed.

The judgment is affirmed.

Affirmed.