
    SCHULTZ v. STATE.
    No. 13717.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    W. J. Baldwin and J. R. McDougald, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Assault with intent to murder is the offense ; penalty assessed at confinement in the penitentiary for three years.

William Broderick, a taxicab driver, was employed by the appellant to take him to Sabine Pass. After traveling some distance from the city, the car was stopped at the request of the'appellant,-who claimed that he desired to answer a call of nature.' Before getting into the car again, he told Broderick that one of the tires appeared to be in need of air. Broderick got out of the car, and, when he stooped to look at the tires, he was struck by the appellant with some instrument a number of times, rendered unconscious for a time, and seriously injured. Appellant then took possession of the car and left. Witnesses who saw Broderick described him as very bloody, covered with dirt, looking very bad. He was bruised and bleeding. There were several wounds on his head, requiring a number of stitches, and keeping him in the hospital for five days. When pursued, the appellant left his ear and got into a bog. In the car an officer found a bloody cap and a piece of iron about eighteen inches long and three or four inches thick, wrapped with a white rag which was saturated with blood. The car was afterwards identified as that which had been taken from Broderick.

Appellant defended upon the ground that he was so drunk that he did not know what had happened. Broderick testified that he saw the appellant drink some, but that he did not appear to be drunk. Appellant was a sail- or, and claimed that another sailor whom he did not know had given him some liquor which deprived him of his senses; that he drank other liquor also; that he had no knowledge of his conduct in assaulting Brod-erick; that he came to his senses about daylight, and found himself in the mud and water somewhere near the Texas Refinery; that he was arrested in that locality.

On cross-examination, appellant testified, in answer to a question propounded by state’s counsel, that he was staying at a rooming house in Port Arthur, Tex., conducted by Ella Burns, a colored woman.- On reeross-ex-amination, he was asked if it was not a house of prostitution. A bill of exception shows that objection was made to the question, but it fails to show that there was any answer to the inquiry.

Two other bills of exception complain of the refusal of special charges on the subject of the use of intoxicants. The jury was given special charge No. 2, requested by the appellant, which special charge adequately instructed them that intoxication did not excuse the crime, but was a matter that might be taken into consideration by the jury in fixing the penalty in the event of a conviction. The charge given gave the accused the full benefit of the law, as declared in article 36, P. O. 1925.

Failing to find any reversible error in the record, the judgment is affirmed.  