Buie v. State

Appellant was indicted for assault with intent to murder Floyd Hoskins. The court did not submit the issue of assault with intent to murder. The issue submitted was whether appellant was guilty of aggravated assault resulting from the infliction of serious bodily injury upon Hoskins. The evidence shows that appellant struck Hoskins upon the back of the head with an object which was twelve or thirteen inches long, the exact nature of which was not known. Three stitches were required to close the wound. Hoskins was rendered unconscious by the blow. The wound was received in the early part of Saturday night. He was taken to the hospital where he remained unconscious until ten or eleven o'clock on Sunday, and was kept at the hospital until Monday afternoon. No physician was called to testify as to the nature and probable result of the injury. Appellant contended upon original submission and urges upon rehearing that under the facts the injury sustained by Hoskins was not shown to be of that serious character which would support a conviction for aggravated assault.

In Chapman v. State, 73 S.W.2d 536, attention was called to the fact that the opinions of this court were not in harmony upon the subject. A number of cases were cited pro and con upon the question of what had been held by this court to be and not to be serious bodily injuries. The following cases with more or less cogency, depending upon the facts, support appellant's contention. George v. State, 21 Texas App., 315; Wilson v. State, 34 Tex.Crim. Rep.; Halsell v. State, 29 Tex. Crim. 22; Head v. State, 52 Tex.Crim. Rep.; Parish v. State,69 Tex. Crim. 254; Black v. State, 67 S.W. 113; Miller v. State, 59 Tex.Crim. Rep.; Lewis v. State, 103 Tex. Crim. 82,279 S.W. 819; Spiller v. State, 150 S.W. 1164; Young v. State, 86 Tex.Crim. Rep., 218 S.W. 754. Perhaps the strongest cases upon the facts are those of Head, Wilson and Parish. From the language employed in those opinions we are inclined to believe the decisions holding the injury sustained not to have been serious turned upon the testimony of physicians. Sustaining the verdict of the jury that appellant was guilty of aggravated assault may be listed the following cases. Bruce v. State, 41 Tex.Crim. Rep.; Housley v. State, 53 Tex. Crim. 372; Thomas v. State, 55 Tex.Crim. Rep.,116 S.W. 600; Fulkerson v. State, 57 Tex.Crim. Rep.; Wimberly v. State, 60 Tex.Crim. Rep.; Nickerson v. State,154 S.W. 992 and Svidlow v. State, 90 Tex.Crim. Rep.,236 S.W. 101. In Miller's case (supra), cited as sustaining appellant's contention, there was a dissenting opinion which referred to and relied upon the Bruce and Housley cases (supra). The case nearest upon the facts which we have been able to find is that of Thomas (supra). There the injured party was struck with something and knocked unconscious and remained in that condition two or three hours. He was struck on the point of the chin and had two teeth knocked out and his jawbone fractured. The same contention was made there as is here made, that the evidence was not sufficient to show that the injury sustained was of such serious character as to support a conviction for aggravated assault. The court in passing upon the case said:

"We think a blow in the face which knocks a grown man down, renders him unconscious for two or three hours, fractures his jawbone and knocks out some of his teeth, is a serious injury."

While in the present case we have no broken jawbone, and no lost teeth, yet, the facts do show that Hoskins remained unconscious for more than twelve hours. We are not willing to hold as a matter of law that an injury which produces such results is of a trivial or light character.

Appellant's motion for rehearing is overruled.

Overruled.