Chisom v. State

• Decision Date: 16 June 1915
• Docket Number: (No. 3618.)
• Citation: 179 S.W. 103
• Parties: CHISOM v. STATE.
• Court: Texas Court of Criminal Appeals

Page 103

179 S.W. 103

CHISOM v. STATE.

(No. 3618.)

Court of Criminal Appeals of Texas.

June 16, 1915.

Rehearing Denied October 13, 1915.

Appeal from Harris County Court, at Law; C. C. Wren, Judge.

Wash Chisom was convicted of aggravated assault, and he appeals. Affirmed.

Meek & Kahn, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was charged by information with "unlawfully making an aggravated assault and battery upon the person of Oscar P. Steckel, with a weapon then and there calculated to inflict serious bodily injury, to wit, knucks, and by the use of said weapon did then and there inflict serious bodily injury to the said Oscar P. Steckel," etc. The Assistant Attorney General and Mr. E. T. Branch have filed a brief, which in our opinion correctly disposes of each question presented, and we therefore adopt the brief as the opinion of the court:

"1. The complaint on which the information is based recites that the assault was committed with a weapon, `to wit, knucks, commonly known as brass knucks,' while the information describes the weapon as `knucks.' Appellant contends that there is a fatal variance between the information and the complaint as to the description of the weapon with which the assault is alleged to have been committed, on account of the fact that the words `commonly known as brass knucks,' which appear in the complaint, are not contained in the information. The terms `knuckle,' `knuckles,' `knucks,' `brass knuckles,' and `brass knucks' have the same meaning. Mills v. State, 36 Tex. Cr. R. 71, 35 S. W. 370; Morrison v. State, 38 Tex. Cr. R. 392, 43 S. W. 113. Where there is substantial agreement between the information and the complaint on which it is based, a variance is immaterial. Meier v. State, 10 Tex. App. 39; Cole v. State, 11 Tex. App. 67; Steinberger v. State, 35 Tex. Cr. R. 492, 34 S. W. 617; Baker v. State, 35 S. W. 666; Huizar v. State, 63 S. W. 329; Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 157, Ann. Cas. 1914C, 863; Brown v. State, 170 S. W. 714. This is an information for an assault, and it is not sought to charge the unlawful carrying of a prohibited weapon on the person. The name by which a thing is commonly called is in law its name, though in fact it may bear a different name. Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 912; Schenk v. State, 174 S. W. 357. We think the variance is immaterial and could in no way have affected the rights of the appellant. The ground of aggravation relied on was that serious bodily injury was inflicted.

"2. There was no error in permitting the doctor, who had qualified as an expert, to give his opinion as to the probable cause and nature of the injuries inflicted on the alleged injured party. Waite v. State, 13 Tex. App. 180; Banks v. State, 13 Tex. App. 182; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Spates v. State, 62 Tex. Cr. R. 532, 138 S. W. 395; Lacoume v. State, 143 S. W. 626; Williams v. State, 144 S. W. 626; Harris v. State, 148 S. W. 1076; Singleton v. State, 167 S. W. 46; Brown v. State, 174 S. W. 362. The opinion of the doctor that the injured party was struck with metal knucks, or with some instrument capable of inflicting a similar injury, is borne out by his description of the wounds inflicted, the number of fractures, and the direct connection between the fractures and the surface of the skin.

"3. The proof is sufficient to sustain the finding of the trial judge, as shown by his qualification to bill of exceptions No. 4, accepted and filed by appellant, to the effect that the testimony was amply sufficient to show circumstantially that the prosecuting witness was struck with knucks, as found by...