Wesley v. State

Appellant again insists that there is present in the record no testimony upon which the jury could predicate its conclusion of guilt in an assault to murder charge against her; that because of the fact that she used an ordinary pocketknife with a blade three inches long (which would not be deadly weapon per se) and because the seriousness of the wounds is not shown, it is contended that there is no basis for the felony conviction herein of the assault upon the injured person.

There is testimony from a physician in the record. It was testified to by him that a knife of the kind and character shown him and which was the knife used in this cutting, in the hands of a person of appellant's size and apparent strength, in the position in which it was used upon the injured party in her chest and head, would be calculated to produce death or serious bodily injury. The testimony, taken in conjunction with a previous statement by appellant that the prosecutrix "ought to have done been killed," and her further statement at the time charged in the indictment, "I told you I was going to get you," evidenced the fact of her intent at the time to commit the crime of murder. The fact that this stabbing with the knife took place over a counter in a cafe might have had some bearing in the prosecutrix not losing her life.

In the case of Ammann v. State, 145 Tex.Crim. R., this court said:

"The specific intent to kill is an essential element of the offense of assault with intent to murder. Art. 1160, P. C. * * * Such intent may be inferred when the instrument used in committing the assault is a deadly weapon. If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from the shown by the surrounding facts and circumstances. If it is possible that death might have been inflicted by the weapon used, and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon. Branch's P. C., Sec. 1636; Franklin v. State, 37 Tex.Crim. R., 38 S.W. 802; Basquez v. State, 114 Tex.Crim. R., 26 S.W.2d 206; Rose v. State, 123 Tex.Crim. R., 58 S.W.2d 526."

We think that the original opinion properly disposes of this case, and the motion for a rehearing is accordingly overruled.