
    YEAGER v. STATE.
    (No. 11298.)
    Court of Criminal Appeals of Texas.
    Jan. 18, 1928.
    Rehearing Denied March 21, 1928.
    (. Criminal law <§=*475 — Permitting expert to testify knife in hands of man defendant’s size could produce death on one size of victim held not error.
    In prosecution for assault to murder, where physician testified victim had three cuts on the head and body, permitting him to answer question whether a knife with a blade from one to two inches long, in hands of man the size of defendant, used on a girl the size of his victim, was capable of producing death, to which he replied affirmatively, held not error.
    2. Criminal law <§=>470 — Medical expert cannot give opinion on matter about which jury are equally capable of judging.
    An expert medical witness cannot give his opinion on a matter about which jury are as capable of judging as he, nor on any issue which jury are impaneled to try.
    3. Criminal law <§=>470 — Refusal to permit question to medical expert whether knife was used by defendant as a deadly weapon held proper.
    In prosecution for assault to murder, refusal- to permit question to medical expert whether knife used by defendant to make cut was used as a deadly weapon-was proper, since it called for his opinion on an issue to be tried by jury.
    4. Homicide <§=>300(9)— Failure to properly charge self-defense was not error, where testimony raising issue thereof was remote and trivial.
    In prosecution for assault to murder, where defendant claimed he stabbed his victim without thinking after she struck or slapped him, failure to charge on self-defense was not error, where testimony raising issue thereof was too remote and trivial to justify submission of issue thereon.
    5. Homicide <§=>340(3) — Charge that defendant’s temporary insanity should be considered in mitigation was favorable, where issue of temporary insanity was not raised.
    In prosecution for assault to murder, charge that if at time -of commission of offense defendant was laboring under temporary insanity jury should consider it in mitigation of penalty was favorable to defendant, where there was no evidence on issue of temporary insanity which justified charge thereon.
    Commissioners’ Decision.
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Otis Yeager was convicted of assault to murder, and lie appeals.
    Affirmed.
    Dave Watson, of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Lamar Seeligson, Asst. Dist. Atty., both of San Antonio, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, assault to murder; penalty, 15 years.

The facts, briefly stated, sufficient to illustrate the legal points discussed, are as follows:

The appellant took prosecuting witness, Dorothy Bronson, to a resort called “Shad-owland,” near San Antonio, where some drinking occurred, after which they returned to the house of a friend, appellant at the time being very drunk. Here prosecuting witness testified that appellant pulled out a small pocketknife with a blade about 2½ inches long and cut her three times. She afterwards testified that she would not say that the knife, blade and all, was longer than 2 inches, as she only got a glimpse of it. Appellant testified that the length of the knife, blade, handle, and all, was about 1% inches, the blade about three-quarters of an inch, and that the knife was made to put on a watch chain. He testified:

“At that time I had this little gold knife off my chain and was cleaning my finger nails, and when I said I was going back after Dorothy McCann, she called me a s- of a b--, and hit me, and I cut her before I thought. * * * I did not have to stoop over. I don’t know what I did. * * * After she slapped me, I cut her, they say, three times; I don’t even remember.”

Prosecuting witness’ testimony shows that the assault of appellant was an unprovoked and wanton one.

Dr. Pipkin testified that he dressed the wounds of prosecuting witness; that she had three cuts, one behind the left ear, extending down about seven inches, about a quarter of an inch deep; another across the side and abdomen about six inches long and about half an inch or three-quarters of an inch deep. After so testifying, Dr. Pipkin was asked by the state:

“Doctor, I will ask you to state whether or not a knife with a blade from one inch to two inches long, in the hands of this defendant or a man of his size, used on a girl the size of Dorothy Bronson, that the evidence shows weighs 118 pounds, whether a knife of that character is capable of producing death?”

—to which over objection the witness replied in the affirmative. Many objections were urged to this question and the answer, among them being that it was not the subject of expert evidence and that it did not include the proof as to the nature and location of the wounds, and what might or could be done with a weapon is not the test.

An expert medical witness cannot give his opinion upon a matter about which the jury are as capable of judging as he is, nor upon any issue which the jury are impaneled to try. It would seem, however, that a physician familiar with human anatomy, the structure of its tissues, the depth below the surface of its vital organs, and the protection over each of them in the way of bones or muscles, is qualified and ought to be permitted to give an opinion as to whether a described instrument in the hands of a certain person is capable of producing death. Certainly this is a matter that the jury could not know about. In another form the question amounted to no more than whether or not the knife described could penetrate to a vital organ so as to cause death. Under the peculiar facts of this case this seems to have been made an issue. Certainly if the appellant was attacking with a weapon that was capable of penetrating to and severing or entering some vital organ, it was a potent circumstance against him which the jury were entitled to know, but if on the other hand the attack was made with an instrument not capable of producing death, both because of its size and the structure of the human anatomy, it would bear strongly on the issue of his lack of intent to kill. Under the facts of this case, there was in our opinion no error in the court’s action. Hardin v. State, 51 Tex. Cr. R. 559, 103 S. W. 401; Underhill’s Criminal Evidence (3d Ed.) § 193; Svidlow v. State, 90 Tex. Cr. R. 510, 236 S. W. 101.

Exception was reserved to the refusal by the trial court to permit the following question to be answered:

“Doctor, the knife used in the hands of Otis Yeager to make that cut, as used in making that cut, was it used as a deadly weapon?”

The refusal to permit an answer to this question was proper. One of the instructions by the court to the jury was as follows:

“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.”

One of the indispensable elements of assault to murder is the specific intent to kill, which under the instructions of the court might be found from the manner in which the instrument was used with which the assault was made. The above question clearly called for a conclusion upon an issue to be tried by the jury. This would in effect be asking the opinion of the witness upon one of the issues of the case on trial, which is never permissible. Underhill’s Criminal Evidence (3d Ed.) § 187; Hunt v. State, 9 Tex. App. 166.

Various complaints are made with reference to the failure to properly charge self-defense and the improper references to self-defense contained in the court’s charge. We do not think the evidence, fairly considered, raised the issue of self-defense. Appellant himself testified that after he was hit, or slapped, “he struck her before he thought.” She had slapped him, after which he cut her, but there is no testimony to show that she was making any further attempt to attack him or that he believed that she was or that it reasonably so appeared to him or that he believed he was in any kind of danger. On the contrary, he claims he stabbed her without thinking. This disposes of all these various contentions, as any reference to self-defense in the court’s charge, or any charge upon self-defense, would be favorable and not prejudicial to the accused. If there is testimony raising any issue of self-defense, it is too remote and trivial to justify its submission. Navarro v. State (Tex. Cr. App.) 43 S. W. 106; Burton v. State, 67 Tex. Cr. R. 149, 148 S. W. 805.

The court instructed the jury:

“Now if you believe from the evidence in this case, or have a reasonable doubt thereof, that the defendant, at the time of the commission of the offense for which he is on trial (if you find him guilty of such offense), was laboring under temporary insanity as above defined, produced by the voluntary recent use of ardent spirits, or by being struck in the face, or by a combination of both said causes, you will take such temporary insanity into consideration in mitigation of the penalty attached to the offense for which' the defendant is on trial.”

Appellant exceptéd to said charge, the substance of which is that if said intoxicationi and the blow rendered appellant temporarily insane, lie was entitled to be acquitted and the jury should have been so instructed. A sufficient answer to this is that the record in this case does not raise the issue of temporary insanity so as to justify any such charge. The said charge was more favorable to the appellant than he was entitled to, and to go further and instruct that he was entitled to an acquittal would be unauthorized by the evidence and unsupported by any legal authority of which we are aware.

Believing that the evidence is sufficient and that no prejudicial- error was committed, ■ the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Inasmuch as the knife used by appellant on the occasion in question did not, in the manner used, cause the death of the injured party, we have difficulty in following appellant in his insistence that he was injured by the action of the trial court in letting Dr. Pipkin testify that such a knife in the hands of a man of appellant’s size was capable of producing death if used on a girl weighing 118 pounds, about the size of said injured party. The case of Hilliard v. State, 87 Tex. Cr. R. 15, 218 S. W. 1052, 8 A. L. R. 1316, cited by appellant, seems on such wholly different facts from the case before us, as to hardly be in point. • The issue in that ease turned upon the deadly character of a pistol used as a bludgeon — a question, the solution of which might be affected, but unjustly so, by the opinion of a doctor who was entirely without experience in judging the effect of such use. Hilliard was on trial for an aggravated assault, and the opinion of the physician that the pistol so used as a bludgeon was a deadly weapon was of much materiality. In this case the doctor whose testimony formed the basis for the objection did see and treat the wounds inflicted on the injured • party by the knife in the hands of appellant. The charge here was assault to murder, and the conviction was for that offense. Regarding the weapon used, the court in this case told the jury that if they found from the evidence that such knife was one not likely to produce death, or if they had a reasonable doubt thereof, then the intent to kill was not to be presumed, but must evidently appear. It must be manifest to every one that a knife with a blade one to two inches long is capable of producing death when used upon another human being. The arteries in many parts of the body lie so near the surface as to be eas- . ily reached by the úse of such a knife. The mere statement in evidence that such a weapon is capable of causing death, when death and its cause was not an issue, and when there was no serious controversy over the fact of such use, whether the testimony be given by a physician or any other person, would hardly be such error as to call for a reversal.

A further review of the record fails to cause us to change our minds in holding that the facts were not such as to call for a charge on self-defense. In our opinion the facts show an assault of such character as to merit a seyere penalty.

The motion for rehearing will be overruled. 
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