Wilms v. State

334 S.W.2d 825, 169 Tex. Crim. 436, 1960 Tex. Crim. App. LEXIS 2968

• Court: Court of Criminal Appeals of Texas
• Decided: April 27, 1960
• Docket: No. 31,862
• Status: Published

Opinion

MORRISON, Presiding Judge.

The offense is aggravated assault; the punishment, one year in jail.

Appellant’s confession was introduced without objection which recited that he and his wife (the deceased) had been drinking on the night in question, that they got into an argument and then a fist fight ensued in which appellant hit deceased in the face with his fist and she fell down. It recited further that she went to bed with her clothes on, that at 3 :00 A.M. he heard her moaning, and at 7:30 he tried to awaken her but was unable to do so and called an ambulance.

It was shown by the testimony of two doctors that deceased died from a traumatic injury to the skull which in their opinion could have been inflicted by a blow from the fist of a person of appellant’s size.

Though the indictment charged murder, the case was submitted to the jury on the law of aggravated and simple assault.

The sole questions presented for review relate to the court’s charge. The bills of exception relating to the charge cannot be considered because the court refused the same and appellant took no further action. Wortham v. State, No. 31,529 (page 164 this volume) 333 S.W. 2d 158; Willie v. State, No. 31,614 (page 393, this volume) 334 S.W. 2d 159; Lair v. State, No. 31,646 (page 220, this volume), 333 S.W. 2d 389; and English v. State, No. 31,766, 338 S.W. 2d 446. We have however, examined the charge as given and find no fundamental error therein.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.