Hawkins v. State

Offense, assault to murder; penalty, four years in the penitentiary.

The injured party spent the night preceding the difficulty at appellant's home and ate the noon meal at the same place, leaving shortly after that time with appellant and four other parties. One of these was dropped out of the car at the town of San Saba and the five remaining proceeding to the home of the injured party, where the difficulty occurred. Arriving at this place appellant and the injured party left the car together and the two went in the house, from which the noise of a struggle was soon heard by the parties remaining at the auto. Appellant was heard to curse the injured party and accuse him of getting his ring that had been stolen from his house. The injured party testified:

"He whipped me in that first room, and after he whipped me awhile he went and got a screw driver. * * * It was a screw driver with an iron handle — steel. He went over in the room and got it — I had it in my trunk. * * * It was * * * about a foot long, and weighed about two pounds. * * * He then took me in that other room and whipped me with that screw driver and then took me into the kitchen. * * * After he whipped me with the screw driver, he took me out in the yard and pulled my ears with the pliers. * * * Before they took me out of the house they took me in the kitchen and told me that they were going to pour kerosene oil on me, and beat my head, and Stanley got up on a chair and jumped off on me. * * * I saw an axe out at that tree. * * * The defendant struck me in the side with that axe. * * * After that I did not know nothing for about thirty minutes. When I come to, he was pulling my ears with the pliers."

The injured party's testimony further showed that appellant beat him for some two or three hours and finally placed him on a cot and put a bucket of water by his side and departed with his companion, Lee Bob Smith, the two others having previously left shortly after the difficulty started. A pair of pliers with blood on them was found by the Sheriff in the said automobile. An attending physician was called and reached the injured party some two or three hours after the difficulty. He testified in part:

"His head and his face from here up was a solid mass of blood. His eyes were swollen until he could not open them, and I could not open them myself. His lips were swollen so bad that they were turned out. His nose was crushed and just flattened entirely on his face. He had some four teeth, I think, that were perfectly loose, and were so loose that at first I thought his jaw bone was broken. * * * He had one cut on his head about an inch and a half long, just back of the right ear. * * * The wounds that I found on the body of Doss Moor were serious bodily injuries capable of producing death. * * * I treated him for about a week."

We deem it unnecessary to consume space repeating the defensive testimony, which was abundantly sufficient to raise an issue of lack of intent to kill. Such issue, however, was submitted to the jury and found against appellant. We have repeated most of the outstanding incriminating facts as a basis for a discussion of the sufficiency of the evidence, which is vigorously assailed by appellant.

Appellant very earnestly and correctly contends that a specific intent to kill must be shown beyond a reasonable doubt before a conviction is authorized in cases of this character. "If a deadly weapon is used in a deadly manner the inference is almost conclusive that the intent was to kill. If the weapon used was not of itself a deadly weapon, the intent to kill may be established by other facts." Hatton v. State, 31 Tex. Crim. 586; Branch's P. C., Sec. 1636. "A deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury." Wilson v. State, 37 Tex. Crim. 156; Branch's P. C., Sec. 1638. "The wounds inflicted on the injured party may be looked to in determining whether or not the knife or other weapon used by defendant was a deadly weapon." Walters v. State, 37 Tex.Crim. Rep.; Branch's P. C., Sec. 1639.

Giving full credence to the testimony of the injured party, which we are compelled to do under the particular facts of this case, since his version of the affair seems to have been accepted by the jury, we have here a case where the accused used an iron screw driver a foot long, weighing two pounds, and an ordinary chopping axe in his attack upon the injured party. We have wounds which in the opinion of the physician were calculated to produce death and which were of such serious character that it called for the attention of a physician for a week. The evidence may abundantly show that appellant abandoned an intent to kill, if any he ever had, but the real question is whether or not he had such intent at the time he was making the alleged assault. In view of the weapons used and the wounds inflicted and the wanton and brutal character of the assault, we think the finding of a specific intent to kill by the jury had sufficient basis in the evidence.

We have examined all of appellant's complaints and finding no error in the record, 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.