de la Hay v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

Appellants have filed a very courteous but well prepared motion for rehearing in which our attention is urgently called to what appears to be a lack of sufficient proof to show that the instruments or weapons used by the appellants were deadly weapons. We have gone carefully over the record, having in view this contention, and are constrained to conclude that the evidence on the point is not of sufficient cogence to establish beyond a reasonable doubt that the weapon used was a deadly weapon. No physician or doctor was called to testify to the serious character of the wounds inflicted upon any of the injured parties by the use of the weapon: referred to, which was variously described and named. If we understand the testimony, it was said to be an object having a handle covered with leather, at one end of which there appeared a leather container having in it a piece of metal said to weigh several ounces. None of the witnesses claimed this to be a deadly weapon except the assistant county attorney, and his testimony is self-contradictory on this point. It is possible that the stenographer did not correctly report the testimony of this witness, but that fact is not set up nor seriously contended for. Mr. Redic, the assistant county attorney, testified:

“I am not an expert in lines of deadly weapons. I have used a weapon as a deadly weapon hunting, but never against an individual. I would say that I think, from my own personal knowledge, that this is a deadly weapon, I think it would depend on the manner of its use. I would say that it might not be or might be,- I don’t think that anybody could say that it is a deadly weapon. I never saw it before until I got it out of our file when this trial started.”

The punishment adjudged against each of the seven appellants was one year in the county jail, and a fine of $500.00. The testimony seems to show a general fight participated in by a number of Mexicans, among them these appellants. It would appear upon more mature consideration that the State should have introduced more testimony as to the deadly character of the weapons or instruments used in the assaults upon the injured parties. The same rules of evidence should be held to obtain in the case of these unknown Mexicans as would be required in any other case of like character.

Having concluded that we were in error in holding the testimony sufficient to show these appellants to have committed the assaults with a deadly weapon, the motion for rehearing will be granted, the judgment of affirmance set aside, and the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.