Windham v. State
| Decision Date | 08 February 1956 |
| Docket Number | No. 27948,27948 |
| Citation | 162 Tex.Crim. 620,288 S.W.2d 90 |
| Parties | Tommy WINDHAM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Scarborough, Yates, Scarborough & Black, Abilene, for appellant.
Tom Todd, Dist. Atty., Abilene, Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for assault with intent to murder without malice; the punishment, confinement in the penitentiary for one year.
The state's evidence shows an assault made by the appellant with a knife upon the injured party, Raymond Goza, on the night of February 13, 1955. It is shown that on the night in question the injured party, in company with his girl friend, Beverly Paxton, had gone to a show and had returned to her home. As he was standing on the porch talking to her, the appellant, who had driven up in a car, came up on the porch behind Goza with a knife in his hand and told him he wanted to talk to him and to get in the car. Goza testified that as he walked from the porch towards the car the appellant followed behind him with a knife in his back; that when they had gotten about half way to the car he turned ground and tried to shove the appellant away, at which time the appellant cut his shirt and then cut his throat. He further testified that at the time he was not armed with a knife or any other weapon.
Immediately after being cut, Goza was carried to a hospital where he underwent surgery and remained in the hospital for five days.
Dr. Marshall Turnbull, one of the attending physicians, in describing Goza's condition, testified that he was bleeding and had a wound on the back of his neck a half inch in length; that the wound went through a portion of the thyroid gland, cut one side of the trachea, which is the windpipe, and went on behind; that the cut went through the sheath of the carotid artery, which furnishes the major portion of the blood to the brain. He further testified that the wound did not produce serious bodily injury but was such a wound as could definitely be calculated to produce serious bodily injury or death.
The knife in question was not introduced in evidence and under the appellant's testimony it was shown that he had lost the knife and that it was a knife about 3 1/2 inches long.
The state's evidence further showed that prior to the date of the assault, the appellant had been having dates with Miss Paxton and that his association with her had culminated in her father, J. O. Paxton, securing a temporary restraining order in the 42nd Judicial District Court of Taylor County on February 11, 1955, restraining appellant from coming about him or his daughter, or coming about the Paxton residence in any manner. It is further shown that the restraining order was in force and effect at the time of the assault in question.
Appellant, as a witness in his own behalf, testified that the reason he wanted to talk to the injured party was about him going with Miss Paxton, and denied that he had a knife in his hand when he approached the injured party on the porch or that he held a knife in the injured party's back as they walked towards the car. In giving his version of the transaction he testified that as they were walking away the injured party ran his hand in his pocket, jerked it out and hit him on the nose, knocking him to his knees, and as Goza started to hit him again he swung at Goza with his knife.
We shall first discuss the sufficiency of the evidence in the light of appellant's contention that it is insufficient to show an intent to kill because the knife was not shown to be a deadly weapon per se or that it was used in a manner calculated to produce death or serious bodily injury.
The specific intent to kill is an essential element of the offense of assault with intent to murder under Art. 1160, Vernon's Ann.P.C. Such intent may be inferred when the instrument used in the commission of the assault is a deadly weapon. If, however, the weapon is not deadly, the intent to kill on the part of the accused may be ascertained from the surrounding facts and circumstances. If it is possible that death might have been inflicted by the weapon used and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon. See Branch's Ann.P.C., Sec. 1636; Ammann v. State, 145 Tex.Cr.R. 134, 165 S.W.2d 744; Daugherty v. State, 153 Tex.Cr.R. 8, 216 S.W.2d 222; and Henry v. State, 157 Tex.Cr.R. 88, 246 S.W.2d 891.
We think the evidence is sufficient to show an intent to kill. Dr. Turnbull's testimony shows that the...
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Williams v. State, 42390
...215 S.W.2d 624; King v. State, 153 Tex.Cr.R. 422, 220 S.W.2d 647; Henry v. State, 157 Tex.Cr.R. 88, 246 S.W.2d 891; Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90. I fail to find the evidence sufficient to support the judgment of the trial I respectfully dissent. ...
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Sheffield v. State
...332 S.W.2d 323; McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521, 354 U.S. 936, 77 S.Ct. 1405, 1 L.Ed.2d 1536; Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90. This complaint is also without merit. Appellant's contention that the second count of the indictment shows that it was barred......
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Moreno v. State
...infer an intent to kill. The very fact that a weapon was used in a deadly manner answers the question. See, e.g., Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90, 92 (1956); Hatton v. State, 31 Tex.Cr.R. 586, 21 S.W. 679 (1893). Thus, our sufficiency review will focus on the relevant inf......
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Blount v. State
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