
    Malinda Washington v. The State.
    
      No. 6878.
    
    Decided April 12, 1922.
    Rehearing Denied May 3, 1922.
    1. —Sentence—Practice on Appeal—Transcript.
    Where the record is without sentence, the appeal must be dismissed. However, the transcript having been properly corrected, the appeal is heard upon its merits.
    2, —Assault to Murder—Charge of Court—Practice on Appeal—Deadly Weapon.
    Where appellant complained that the issue of assault with intent t© murder should not have been submitted to the jury, and that the verdict was contrary to the evidence, but there was no complaint of record because of the omission of charging on deadly weapon, nor any special charge requested, and the issue of assault with intent to murder, aggravated assault, and self-defense were all submitted to the jury, there was no reversible error.
    Appeal from the District • Court of Galveston. Tried below before the Honorable Robert G. Street.
    Appeal from a conviction of assault with intent to murder; penalty, five years imprisonment in the penitentiary.
    The opinion states the ease.
    
      Henry O’Dell, for appellant.
    
      R. G. Storey, Assistant Attorney General, for the State.'
   HAWKINS, Judge

—Conviction is for assault with intent to murder. Punishment, five years confinement in the penitentiary.

The record before us is without sentence. After conviction of any offense less than capital, sentence is a prerequisite to an appeal. See Article 856, Vernon’s C. C. P. and authorities collated thereunder. Thomas v. State, 89 Texas Crim. Rep., 106.

In the present state of the record this court has no jurisdiction to review the case, and the appeal is dismissed.

Dismissed.

HAWKINS, Judge.

—At a former day of the term the appeal was dismissed because the transcript showed no sentence. That has been corrected in a supplemental transcript. The appeal is reinstated and the cause will now be considered on its merits.

Appellant was convicted of assault with intent to murder one Willie Jones, and her punishment assessed at five years confinement in the penitentiary.

The only complaints made are: first, that the issue of assault with intent to murder should not have been submitted to the .jury at all; and; second, that the verdict of the jury is not supported by the evidence, both of which bring in review the sufficiency of the evidence.

Appellant and Willie Jones were negro women living next door to each other. Their relations were not very pleasant. Willie had made complaint to the officers that appellant had been making threats against her and offering to do her violence upon more than one occasion, and also had complained to the party from whom both rented about the conduct of appellant toward her. At the time of the alleged effence Willie claims that appellant, without any cause, made an assault upon her with a knife, in which she received many wounds, resulting in her remaining in the hospital for several days. Appellant, on the other hand, claims that Willie was the instigator of the trouble, and that without provocation on appellant’s part she threw the contents of a slop jar in her face, whereupon appellant made an effort to get away, and that Willie, herself commenced the fight by cutting appellant, and that she (appellant) only used her knife in self-defense. The physician who was called to treat prosecutrix found upon her forehead, neck, arms, back and front of her body twenty-seven wounds, most of them being “slashed” wounds, and not stabs; one in the upper right arm was a stab wound about 1/4 or 3/8 of an inch long and extending down into the muscles about one and 1/2 inches; another wound on her right forearm was a very deep cut, extending into and severing some of the muscles; the other wounds were superficial, being only through the sirin' and the tissues under the skin; prosecutrix remained in the hospital nine or ten days; the wounds were not calculated to produce death, but that in her arm might result in lesseniug the use thereof.

There is no description of the knife further than that it was a pocket knife with a small blade. Appellant contends that there was no such description of the knife as to authorize the jury to determine that the same was a deadly weapon, or to presume that she was using the same with an intent to kill. The two wounds described particularly by the physician were of such a character as if inflicted in other portions of the body might have resulted in death, and the jury were authorized to draw conclusions from the wounds inflicted as to the character of the knife used. The evidence shows that twenty-seven wounds upon different parts of the body were inflicted by appellant. The evidence would have perhaps made pertinent a charge of Article 1106, P. C., providing that:

"The instrument or means by which the homicide is committed are to be taken into consideration in charging the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used, such intention evidently appears."

We find no complaint because of the omission of said Article from the charge, nor any special charge requested to that effect. The issue of assault with intent to murder, aggravated assault and self-defense were all submitted. We cannot say the court was in error in having submitted the issue of assault with intent to murder, or that the verdict finding appellant guilty thereof is without support. If the jury had accepted appellant’s version of the difficulty they would doubtless have returned a verdict of not guilty. We are not authorized to set a verdict aside where there is sufficient evidence upon which to base it.

The judgment of the trial court must be affirmed.

Affirmed.  