Crowley v. State, 23476.

• Decision Date: 11 December 1946
• Docket Number: No. 23476.,23476.
• Citation: 199 S.W.2d 526
• Parties: CROWLEY v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W.2d 526

CROWLEY v. STATE.

No. 23476.

Court of Criminal Appeals of Texas.

December 11, 1946.

Rehearing Granted February 12, 1947.

Commissioners' Decision.

Appeal from District Court, Ector County; Cecil C. Collings, Judge.

Pearl Crowley was convicted of an assault with intent to murder and she appeals.

Reversed and remanded.

Wm. E. Davenport, of San Angelo, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is an assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a period of three years.

Appellant's first contention is that the trial court erred in instructing the jury on the law of murder with malice, and also with reference to the punishment prescribed by law for such offense, because the indictment only charged her with an assault with intent to murder without malice. We note that the jury found her guilty as charged, which means guilty of an assault to murder without malice, and assessed her punishment at confinement in the state penitentiary for a term of three years— the maximum punishment prescribed by law for such an offense. The court, in sentencing the appellant, sentenced her to confinement in the state penitentiary for not less than one nor more than three years. We agree with her that in the absence of an averment in the indictment that an assault to murder was committed with malice aforethought, the court should not have instructed the jury on the law of an assault to murder with malice. We are of the opinion, however, that although it was improper for the court to instruct the jury on the law of an assault to murder with malice, yet that error passed out the case when the jury found her guilty of an assault to murder without malice.

Appellant cites us to the case of Dunn v. State, 128 Tex.Cr.R. 229, 81 S.W.2d 87, as supporting her contention. We have read that case and find quite a distinction between it and the present one. In that case the jury specifically found the accused guilty of an assault to murder with malice, although it was not so charged in the indictment. In the instant case, the jury merely found appellant guilty of an assault to murder without malice, as charged in the indictment. Thus it will be noted that there is quite a difference between that case and the one under consideration. We think the difference is so obvious that any further discussion thereof is unnecessary.

Appellant's next contention is that the evidence is insufficient to justify and sustain her conviction. With this we are unable to agree. The State's evidence, briefly stated, shows that Mr. and Mrs. T. H. Bird had rented one of appellant's apartments and were living therein at the time of the alleged assault; that they had always paid the rent promptly as the same became due; that on the occasion of the assault, which occurred between 9:30 and 10, appellant appeared at the apartment of Mr. and Mrs. Bird and inquired of them when they were going to move. Mr. Bird replied that he would move when his time was up. This did not seem to meet with the approval of appellant and she soon became offensive, pricked him in the face with her finger, then turned upon Mrs. Bird and caught her by the hair. Mrs. Bird then caught appellant by the hair and a hair pulling ensued until both fell on a divan. Mr. Bird tried to separate the women and finally succeeded in doing so. Appellant then left but soon returned, armed with a long-bladed knife, pulled off the hook on the screen door, broke a latch on the panel door, entered the kitchen and from there proceeded to the living room where she found Mr. Bird. She attacked him with the knife, the blade of which was between six and seven inches long. She cut him across the arm, and when he retreated, she pursued him and stabbed him in the back, completely severing the fifth and sixth ribs. The attending physician testified in substance that when Mr. Bird was brought to his hospital, he had an X-ray picture made of his chest; that it disclosed that the fifth and sixth ribs were severed; that there was quite a quantity of blood which had collected in the right lung; that the wound was a serious one and one which was calculated to produce death.

The intent of the person committing an assault with intent to murder may be inferred from the character of the weapon used and the nature and extent of the wound inflicted. See Duhon v. State, 136 Tex.Cr.R. 404, 125 S.W.2d 550; Amman v. State, 145 Tex.Cr.R. 34, 165 S.W. 2d 744, and authorities cited.

Appellant did not testify, but introduced a number of witnesses who stated that the ribs of the injured party did not appear to have been cut with a knife but that they appeared to have been broken by some force other than by the use of a knife. It will be noted that an issue of fact was raised which the jury decided adversely to her. Under the facts as disclosed by the record, this court would not be authorized to interfere with the verdict of the jury and the judgment of the court based thereon.

No other question being presented for review, the judgment of the trial court is affirmed.

PER CURIAM.

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.

HAWKINS, Presiding Judge.

Conviction is for assault with intent to murder, punishment assessed by the jury's verdict, three years in the penitentiary. In applying the indeterminate sentence statute the trial court directed imprisonment in the penitentiary for not less than one nor more than three years.

Omitting formal parts the indictment under which conviction was obtained alleged that appellant assaulted T. H. Bird "with the intent then and there to murder the said T. H. Bird." There was no averment that the assault was committed with malice aforethought.

Art. 1160, P.C.(1925), in so far as applicable here, read as follows: "If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than two nor more than fifteen years * * *".

By Acts of 42nd Legislature (1931), page 95, Ch. 61, Art. 1160 was amended, Vernon's Ann.P.C. Art. 1160, it being thought desirable or necessary because of the change in our murder statute. As so amended, said Art. 1160 now provides:

"If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than two nor more than fifteen years; provided that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confinement in the penitentiary; if the assault be made with a bowie-knife or dagger, or in disguise, or by laying in wait, or by shooting into a private residence, the punishment shall be double.

"Sec. 2. Upon the trial of any person for assault with intent to murder, the Court, in its charge to the jury, shall define malice aforethought and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts."

It had been held prior to the amendment of 1931 that it was not necessary to allege in an indictment for assault with intent to murder that the assault was made with "malice." In two opinions, Smith v. State, 120 Tex.Cr.R. 34, 48 S.W.2d 646, and Small v. State, 116 Tex.Cr.R. 41, 32 S. W.2d 860, an indictment omitting an allegation that the assault was made upon "malice" was held to embrace an assault to murder with "malice" under present Art. 1160, P.C. However, as soon as the attention of this court was directed to the principle that the increased penalty could not be inflicted unless the assault was committed with "malice", it was held necessary to allege that the assault was made with malice, otherwise accused stood charged with no other offense than assault to murder without malice and no greater punishment could be inflicted than for the latter offense. See Jessie v. State, 126 Tex.Cr.R. 250, 70 S.W.2d 743; Dunn v. State, 128 Tex.Cr.R. 229, 81 S.W.2d 87; Weathersby v. State, 129 Tex.Cr.R. 420, 87 S.W.2d 1102; Collins v. State, 136 Tex.Cr.R. 600, 127 S.W.2d 451; McKee v. State, 134 Tex.Cr.R. 309, 115 S.W.2d 943; Crown v. State, 143 Tex.Cr.R. 506, 159 S.W.2d 872; Rios v. State, 147 Tex.Cr.R. 326, 180 S.W. 2d 439; Washington v. State, Tex.Crim. App., 193 S.W.2d 531.

The trial court, believing the indictment in the present case embraced a charge of assault to murder with malice, so instructed the jury upon that phase of the law, evidently overlooking the cases above cited. Appellant's attorney appears to have been under the same impression as the trial court for we find no objection to the court's instructions because of the submission of assault to murder with malice. The absence of any such objection has given this court much concern.

The trial court properly told the jury that: "In arriving at your verdict you will be governed by the following instructions, and that the law applicable to this case is herein (in the charge) given you and you will be governed thereby."

The court then defined murder, and advised the jury that it might be committed either with or without malice. He then defined malice, and told the jury what would constitute murder without malice. He then...