Davis v. State

306 S.W.2d 353, 165 Tex. Crim. 294, 1957 Tex. Crim. App. LEXIS 2325

Opinions

DAVIDSON, Judge.

Under an indictment charging assault with intent to murder with malice, appellant was convicted of assault with intent to murder without malice and her punishment assessed at two years in the penitentiary.

The facts are well stated in a bill of exception, which the trial court approved without qualification. We adopt that as our statement of the case:

“Upon the trial the evidence was contradictory; the prosecution offering evidence that the defendant asaulted the prosecuting witness and cut her with a butcher knife, as a result of a fight emanating from the prosecuting witness’ claim that the defendant had stolen some ‘panties’ off of a ‘community clothesline.’ The defendant and her witnesses claimed that the defendant was acting in self-defense, and, at the time of the difficulty, the prosecuting witness was armed with a knife. The state’s evidence was that the assault occurred outside the defendant’s apartment ‘in the yard,’ while the defendant and her witnesses insisted that it occurred inside the defendant’s apartment.”

Under those facts, the trial court charged upon self-defense from a deadly attack and, in connection therewith and as a limitation of that right of self-defense, the trial court charged on the law of provoking the difficulty.

In the concluding portion of that charge, the jury were instructed that if they found that appellant had provoked the difficulty “then you will find the defendant guilty of assault with intent to murder and assess her punishment as heretofore stated in this charge.”

The sole and only objection to this charge was that it was “a comment on the weight of the evidence.”

In her brief, appellant forcibly contends that the charge was error and that, instead of depriving her of her right of self-defense — as is the purpose of a charge on provoking the difficulty — it was an instruction to convict her of assault with intent to murder, without reference to a finding of the existence of guilt of the elements of that offense or the presumption of innocence.

It is not necessary to determine appellant’s contention as to the charge, because the exception to the charge was not sufficient to call to the attention of the trial court the error claimed therein.

Art. 658, Vernon’s C.C.P., requires that the exception to the charge must distinctly specify each ground of objection.

We cannot agree that the objection to the charge to the effect that it was upon the weight of the evidence covered the error now claimed in the charge.

Other matters presented in the brief have been considered and are overruled without discussion.

No reversible error appearing, the judgment is affirmed.