Burleson v. State

164 S.W. 851, 73 Tex. Crim. 200, 1914 Tex. Crim. App. LEXIS 139

Opinion

DAVIDSOH, Judge.

Appellant was convicted of an aggravated assault, his punishment being assessed at a fine of $25.

It is contended the evidence is not sufficient. This is presented by bill of exceptions and motion for new trial. The main contention is that the State failed to show that the weapon used was a deadly weapon as charged in the information and complaint. We are of opinion this error is well assigned. The only evidence in regard to this matter is that the weapon used was a knife. The knife is thus described by the witness: “It was a hawk-bill knife, large at the point and a good sized knife.” There was no injury inflicted during the fight or trouble between the parties. The contention is that appellant cut at the alleged injured party and cut a hole in his coat. There is an issue as to whether appellant did this before the injured party threw a bottle at him or ' afterward. Ho one undertakes to swear that the knife was a deadly weapon, and the above description is all that is given of the knife. Under the decisions of this State that is not sufficient evidence to show that the knife was a deadly weapon.

The judgment will be reversed and the cause remanded.

Reversed and remanded.,