Abels v. State
Decision Date | 17 January 1973 |
Docket Number | No. 45572,45572 |
Citation | 489 S.W.2d 910 |
Parties | Bobby Joe ABELS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Schulz, Hanna & Burke, by Malcolm Schulz, Abilene, for appellant.
Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is assault with intent to murder with malice; the punishment, ten (10) years.
Appellant's first ground of error is that the evidence is insufficient to sustain the verdict. The record reflects that on the night in question the injured party, Ozell Abels, appellant's wife, was seated in a private club in Abilene with a Kenneth Ballard. Appellant entered, accompanied by one Geraldine Gallaher, approached the injured party and stated, 'I am going to cut your head off.' Appellant then cut his wife across the throat with what he described as a 'pocket knife' and chased her across the room, stabbing her a total of 15 times. Her injuries consisted of a ruptured kidney and an injured spleen which were surgically removed, and a punctured lung, stomach and intestines. Dr. Ferris, who treated the injured party, testified that the wounds were serious and the injured party would have died if she had not received prompt medical attention. The knife was not introduced in evidence. In addition to assault to murder with malice, the court charged on assault to murder without malice and aggravated assault.
A pocket knife is not, per se, a 'deadly weapon'. Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679. However, the intent to murder may be shown, as it was in the case at bar, by the manner in which the knife is used and the nature and extent of the injuries. Washington v. State, Tex.Cr.App., 471 S.W.2d 409; Smith v. State, 167 Tex.Cr.R. 454, 320 S.W.2d 680; Moseley v. State, 158 Tex.Cr.R. 623, 259 S.W.2d 225. Cf. Barnes v. State, supra. The evidence is sufficient to support the verdict.
Appellant's second and fourth grounds of error relate to argument. First, he contends the court erred in refusing to permit him to reply to the prosecutor's remark, that he opposed probation 'in this type of case' by arguing that the prosecutor had agreed to probation in a murder case two weeks earlier. We note at first that any possible remarks which counsel sought to make would necessarily have been outside of the record and, therefore, per se, inadmissible. Clark v. State, 156 Tex.Cr.R. 526, 244 S.W.2d 218. We also observe that normally the outcome of another lawsuit is not admissible. Cf. Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716. Martin v. State, 151 Tex.Cr.R. 212, 206 S.W.2d 254.
Appellant's second ground of error is overruled.
Appellant also complains of the following portion of the State's argument:
'State's attorney: He says,
'The Court: All right.
'State's attorney: Well, I will read what it says.
'Appellant's attorney: I object to that statement, and I want the jury instructed not to consider that.
'The Court: You will not consider anything other than what has come into evidence, Ladies and Gentlemen of the Jury.'
Appellant contends the court's instruction was insufficient to remove any prejudice interjected by the prosecutor. However, the appellant did not ask for a mistrial. He received all the relief he requested. Grant v. State, Tex.Cr.App., 472 S.W.2d 531.
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...injury. Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517 (1944); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973). Under the former Penal Code there was no statutory definition of deadly weapon, Mosley v. State, 545 S.W.2d 144 (Tex.Cr.......
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