
    MOODY v. STATE.
    (No. 6567.)
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1922.)
    I. Criminal law <S=> 1098 — Questions and answers unnecessary in statement of facts.
    It is not proper or necessary to insert questions and answers in the statement of facts in order to make plain any ruling of the lower court, as the bill of exceptions should be complete, and, if not so when presented for filing, it should be rejected.
    2. Criminal law <@=>l 120(8) — Admission of statements as res gestee not reviewed where bill of exceptions fails to show inadmissibility-
    In prosecution for assault to murder, it cannot be said that court erred in admitting in evidence statements made by the complaining witness to the doctor when he arrived at the place where the trouble occurred, where the bill of exceptions does not show how long after the assault such statements were made, and the court, upon approving the bill, stating that the evidence was admitted as part of the res ges-te.
    3. Criminal law <@=>406(2) — Statements' held not shown inadmissible as having been made while under arrest.
    Mere fact that the sheriff came to where accused was, or had talked to him after he had assaulted the complaining witness and prior to the making of certain statements, did not show an arrest which would exclude such statements.
    4. Witnesses <@=>286(4) — Character witness should not be permitted to testify on redirect that he would believe a witness on oath.
    Witnesses introduced by the state, who gave testimony that the general reputation of prosecuting witness for truth and veracity was good, should not have been permitted to answer question of county attorney, after b'eing cross-examined and turned back to the state, “Would you believe Mrs. M. [prosecuting witness] upon oath?”
    5. Homicide <@=>310(2) — Court held to have erred in not submitting issue of aggravated assault.
    In prosecution for assault to murder wife, ¡field error under the evidence to fail to submit the issue of aggravated assault.
    6. Homicide <@=>145 — Cutting another with pocketknife does not raise presumption of assault to murder.
    That one cuts another with a pocketknife voluntarily does not make him guilty of an assault to murder, as an intent to kill must appear from the facts, and no presumption of intent to kill can arise from the use of the pocketknife, in the absence of evidence as to its size or length of blade, under Vernon’s Ann. Pen. Code 1916, art. 1147.
    7. Homicide <@=>276, 300(7) — Defendant entitled to affirmative charge on self-defense applicable to evidence; self-defense a question for jury.
    In a prosecution for assault to murder, theory of defendant on self-defense should be presented in an affirmative charge applicable to the facts in evidence offered to support such theory, and the question of whether such facts be true and such defense effective is a matter for the jury.
    Appeal from District Court Johnson County ; Irwin T. Ward, Judge.
    
      .Virgil Moody was convicted of assault to murder, and appeals.
    Reversed and remanded.
    J. B. Haynes, of Cleburne, for appellant.
    ■ R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMOR'E, J.

Appellant was convicted in the district court of Johnson county of ássault to murder, and his punishment fixed at two years in the penitentiary.

The state moves to strike out the, statement of facts upon the ground that the greater, part thereof is made up of questions and answers. The motion finds some support, and attention of the officers charged with the duty of the preparation of statements of facts is again called to the necessity that such statements should be in narrative form; but, as it appears possible in the instant case that the insertion of certain questions and answers in said statement of facts may have been with the idea that such, method made clearer complaints regarding parts of the evidence, we overrule the state’s motion. We observe, however, that it is not necessary to insert questions and answers in the statement of facts in order to make plain any ruling of the lower court. The bill of exceptions should be complete, and, if not so when presented for filing, it should be rejected, and, in a proper case, a complete bill of exceptions should be prepared' and filed by the trial court. There is no brief on file for appellant herein.

By his bills of exception Nos. 1 and 3 appellant complains of certain testimony of Mrs. Moody, the alleged injured party, and Dr. Ball, as to statements made by Mrs. Moody to the doctor when he came to the. place where the trouble occurred. Without setting out at length the averments of said bills of exception, we conclude that neither shows error. From neither bill can we learn how long after the cutting it was before the statements were made, nor what .was the condition of Mrs. Moody at the time, nor whether said statements were made in- the presence of appellant. The court approves these bills, stating that the evidence was admitted as part of the res gestee. The bills were accepted with this qualification upon them and contain nothing showing to the contrary. This also applies to appellant’s bills of exception Nos. 2, 4, and 5. The mere fact recited in said bills that the sheriff came to where appellant was, or had talked to him after the cutting and prior to the making of certain statements by appellant, would not be tantamount to such showing of an arrest as would be necessary in order to exclude such statements, and this showing would not support objections to statements of appellant made after said visit of the sheriff. No conduct of said officer or any statement of his appears in any of said bills which indicates any arrest or suggestion of restraint or custody of appellant. When a witness on the stand appellant did not claim that he made any of said statements while under restraint, or while he thought himself to be under arrest. See section 62, p. 35, Branch’s Ann. P. 0., and collated authorities.

By his bills of exception Nos. 7 and 8 appellant complains that certain witnesses were allowed to state that- they would believe Mrs. Moody, the alleged injured party, on oath. From the record we observe that both said witnesses were introduced by the state and gave testimony that the general reputation of Mrs. Moody for truth and veracity was good. After being cross-examined and turned back to the state for further examination, each of said witnesses Was asked by the county attorney, “Would you believe Mrs. Moody upon oath?” and it is shown that over objection each was permitted to answer in the affirmative. This was error. In Boon v. Weathered’s Adm’r, 23 Tex. 675, and in all subsequent Texas authorities, the rule seems clearly adhered to that the witness may not be asked if he would or would not believe on path the party inquired about. Marshall v. State, 5 Tex. App. 273; Holbert v. State, 9 Tex. App. 219, 35 Am. Rep. 738; Bluitt v. State; 12 Tex. App. 39, 41 Am. Rep. 666; Douglass v. State, 98 S. W. 840; Ware v. State, 36 Tex. Cr. R. 598, 38 S. W. 198; Edgar v. State, 59 Tex. Or. R. 491, 129 S. W. 141. A witness who has testified that the general reputation of the party under investigation is good or bad may also be asked if from such general reputation said party is worthy of belief under oath, but in no case in this state known to us has it been held that the witness may be asked whether he would or would not believe such person under oath.

Appellant excepted to the charge of the court below for its failure to submit the issue of aggravated assault. The trial court, after such exception, did not change his charge or submit said issue. We think a charge on aggravated assault should have been given, and that the failure to give same when excepted to was error. The offense charged was an assault to murder, the gist oi/ which is an assault and the intent to kill. Admitting the assault, and discussing only the intent to kill, we observe there was no threat to kill accompanying or preceding the assault, nor any subsequent statement made by appellant suggesting such intent, nor was there evidence of antecedent menaces or former grudges, or any of those things from which we ordinarily deduce malice. The parties were husband and wife, and while they had been separated for a few weeks, they seem to have been on good terms during the period of their separation, which seems to have come about because of the inability of appellant to make a living. Mrs. Moody says that on the night preceding the trouble appellant came to her house, and when he left she kissed him. On the day -of the occurrence he came again to her house and called her to the back porch where she sat down, and he sat near her on the steps. Evidently he was' urging her to submit her person to him. She says he kept insisting that they go into the house, and that she, knowing what he wanted, refused. Finally he picked her up in his arms •and carried her into the house. He put her ■down, and she says she again refused, and told him that she had two children and did not want any more, and that he could not support her or a child. She says that he then drew his knife and cut her and then cut himself. She further testified that he sank to the floor, and that both arose and walked together through the kitchen and out through the bedroom. She did not flee. There was no outcry. Mr. and Mrs. Stead-man sat on the front porch during the occurrence and knew nothing of it until Mrs. Moody walked out there after the cutting, with the knife in her hands, which she says she took out of appellant’s hands as he sank down on a trunk.

That one cuts another with a pocketknife voluntarily does not make him guilty of assault to murder. An intent to kill must appear from the facts. What was appellant’s purpose? What sort of weapon did he use? Unless the weapon was deadly, would an assault to murder necessarily follow? The weapon used by appellant was a pocketknife. No witness testified to its size or the length of any blade. The mere fact that a pocketknife was used does not establish that it was a deadly weapon. Martinez v. State, 35 Tex. Cr. R. 386, 33 S. W. 970; Johnson v. State, 49 Tex. Cr. R. 429, 93 S. W. 735; Barnes v. State, 52 Tex. Cr. R. 407, 107 S. W. 823; Ross v. State, 61 Tex. Cr. R. 12, 133, S. W. 688. No presumption of intent to kill arises from the use of a weapon not shown to be deadly. Article 1147, Vernon’s P. C., is as follows:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of 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.”

Not only did Mrs. Moody fail to give any description of the knife or the wounds inflicted upon her, but Dr. Ball, the physician who attended her, testifies that he did not probe her wounds, though at the time he thought they were serious. No other person bore witness to the character or seriousness of the wounds upon Mrs. Moody. No one testified that she was confined to her bed, or as to what ill effects she suffered from such wounds. Hr. Ball says she developed a pleurisy, but that it might happen from almost anything.

If appellant cut his wife without excuse, he might be guilty of aggravated assault, or of assault to murder, but, unless the evidence so plainly makes out one offense as to clearly exclude the other, it would be the duty of the trial court to submit the law relative to each and leave the settlement of the issue of fact where it belongs, with the jury. The evidence in this case does not so plainly support either issue as to exclude the other, and, upon exception being presented to the court for his failure to submit the issue of aggravated assault, he should have corrected the charge, or have given a supplemental charge presenting such issue. ,

The court’s charge on self-defense was meager. There was an exception taken to the failure to charge that appellant did not have to retreat, but might stand his ground and defend against an unlawful attack. Appellant swore that his wife attacked him, with a knife and began cutting him without any provocation on his part whatever, and that he drew his knife and cut her in self-defense. The theory of the defendant should be presented in an affirmative charge applicable to the facts in evidence offered to support such theory. Whether sueh facts be true and such defense effective is a matter for the jury.

For the errors mentioned the judgment of the trial court will be reversed, and the cause remanded. 
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