Ross v. State

• Decision Date: 11 January 1911
• Citation: 133 S.W. 688
• Parties: ROSS v. STATE.
• Court: Texas Court of Criminal Appeals

133 S.W. 688

ROSS v. STATE.

Court of Criminal Appeals of Texas.

January 11, 1911.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Arthur Ross was convicted of assault to murder, and he appeals. Reversed, and cause remanded.

T. H. Ridgeway, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

HARPER, J.

In this case the defendant was charged with the offense of assault to murder, and on a trial was convicted, and his punishment assessed at 10 years' confinement in the penitentiary.

The testimony is rather meager on the specific intent to kill. The state's testimony is about as follows: Some white people and some negroes were riding on a street car in the city of San Antonio. The conductor changed the place for the negroes to sit, and directed them to change their seats. The appellant, Arthur Ross, in changing his seat, is alleged to have stepped on a white lady's foot, and, upon her remonstrating, is said to have remarked, "Keep your d___n feet out of the way." Upon her husband stating that he should not curse in the presence of ladies, he cut him with a knife, striking him on the shoulder and cutting a gash about five inches in length. The doctor testified that the wound might have been a serious one, but for the fact that the collar and clothing prevented a deep wound being inflicted. The state offered no proof as to the size of the knife used, or that the wound was a serious one, other than it might have been serious, but for the protection of the collar and clothing. The injured party was not confined to his bed. The appellant's testimony denied the use of the language to the lady, and claimed that he cut Mr. Eastland at a time when he (Eastland) was making an assault on him; that the knife he used was a small pocket knife.

1. The court, in a proper charge, submitted the issue of self-defense. The jury finding against appellant on this issue, there is no ground for complaint. But the defendant in his motion for a new trial raises the issue that the court nowhere in his charge affirmatively submits to the jury whether or not the knife, from its size and the mode and manner of its use, was an instrument calculated and likely to produce death. Article 717 of the Penal Code of 1895 reads as follows: "The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed...