
    SVIDLOW v. STATE.
    (No. 6517.)
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1921.
    Rehearing Denied Jan. 11, 1922.)
    1. Criminal law <©=3475 — Physician’s testimony that pipe shown him while testifying was a deadly weapon held admissible.
    In prosecution for aggravated assault, testimony of physician who had attended prosecuting witness, and w;ho while testifying was shown the piece of iron pipe with which the injury was inflicted, that such a piece of iron pipe when used as a weapon was a deadly weapon, held admissible.
    2. Criminal law <©=> 1169(9) — Testimony admitted under one count harmless in view of general verdi'ct, which could be referred to other count.
    Where information charged aggravated assault in two counts, one asserting serious bodily injury and the other the use of a deadly weapon, and where the verdict of guilty was general, the admission of a physician’s opinion that the pipe used by defendant in inflicting the injury was a deadly weapon, if error, was harmless, since the verdict might be referred to the other count.
    3. Assault and battery <©=395 — Whether injury inflicted was a serious bodily injury held for jury.
    In prosecution for aggravated assault, whether the injury inflicted by defendant was a serious bodily injury held for the jury.
    4. Assault and battery <@=>54 — Any ■ injury which gives rise to apprehension of danger to health a “serious bodily injury.”
    In a prosecution for aggravated assault, any injury which gives rise to apprehension of danger to health would be deemed a serious bodily injury.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Serious Bodily Harm or Injury.]
    
      Appeal from Wichita County Court; Guy .Rogers, Judge.
    : Erank Svidlow was convicted of aggravated assault, and he appeals.
    Affirmed.
    Mathis & Caldwell, of Wichita Falls, for .appellant.
    R. G. Storey, Asst. Atty. Gen., for the , State.
   I LATTIMORE, J.

Appellant was convicted in the county court of Wichita county of aggravated assault, and his punishment fixed •at a fine of $100.

The information charged the offense in. two counts, one asserting serious bodily injury, and on the other the use of a deadly weapon. Both' counts were submitted by the court to the jury, and a general verdict of guilty was rendered. There appears no exception to the charge, no special charges asked, and but one bill of exceptions, which complains that the physician wljo attended the alleged injured party and sewed up his wound, while testifying, was shown the piece of iron pipe with which the injury was inilieted, and was permitted, over objection, to state that a piece of iron pipe three-quarters of an inch in diameter and 18 inches long, held in the hand and used as a weapon to strike, is a deadly weapon. In Waite’s Case, 13 Tex. App. 169, two doctors who examined the wounds upon the injured party testified and were shown the piece of piping with which the wounds were inflicted, and were asked to state, and over objection did state, that said instrument used as bludgeon in the hands of a person of ordinary strength would produce such wounds and be likely to cause death. This was upheld by our court. We are unable to perceive any difference in the principle there involved and that in the issue before us. In any event the testimony could have resulted in no harm, for the verdict, being general, might well be referred to the other count in the information. The alleged victim testified that appellant struck him a blow over the eye with a piece of iron pipe exhibited, and that it knocked him down and made a cut that required several stitches, and from the effects of which he testified that he was still suffering headaches at the time of the trial. A physician testified that there would be no headaches resultant from a blow of this kind without concussion, by which he said he meant a jarring of the cells, which might clear up in a few days, weeks, or months. Whether this was serious bodily injury was a question of fact to be solved by the jury. Any injury which gives rise to apprehension of danger to health would be deemed a serious bodily injury. Branch’s Ann. P. O. § 1583.

This being the only question raised, and believing the evidence justified the jury in resolving the question of guilt on the facts against the accused, the judgment will be affirmed.

On Motion for Rehearing.

In Hardin v. State, 51 Tex. Cr. R. 562, 103 S. W. 401, we said:

“A doctor can say whether an instrument of a certain length and size that has inflicted a certain wound, would be a deadly weapon.”

The Tolston Case, 225 S. W. 1098, is not in point. The question there held objectionable, involved numerous matters of pure conjecture, upon which it seemed impossible that an expert could have any knowledge, which do not here appear. The verdict in the instant cáse may have been based on the infliction of serious bodily injury, and, there being, evidence of injury from the effects of which the injured party had not recovered at the time of trial, we would not feel justified in holding the judgment so wholly without support as to warrant a reversal.

The motion for rehearing will be overruled. 
      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     