
    MILLER v. STATE.
    No. 22943.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1944.
    Edward Risinger, of Rosenberg, for appellant.
    Ernest S. Goens, State’s Atty., of Austin, for the State. ■ • ■ •
   BEAUCHAMP, Judge.

The conviction was for assault to murder, with a penalty of ten years in the penitentiary.

Appellant, a negro boy, was engaged in a quarrel with another negro in the colored compartment of a cafe operated by the prosecuting witness. With a desire to free his premises of the noise, the proprietor approached the parties and told them that they would have to quiet down or leave the room. The appellant made a remark hack to him, which was quoted by several witnesses including the State’s witness, that was in effect telling him that if he, appellant, had to leave the witness would have to go with him. This infuriated the white man, who grabbed a broom and struck the appellant. The negro boy struck back at the witness with a small red-handle knife which was open in his hand at the time, inflicting some kind or character of wound on the proprietor’s arm that kept him in the hospital for about three days and from which he has a permanent injury briefly referred to in his testimony but not described. The boy then ran from the premises. The State used no other witness than the injured party and the foregoing is a full, fair and complete resume of the pertinent facts proven.

The knife described is not a deadly weapon per se. Fregia v. State, 79 Tex.Cr.R. 334, 185 S.W. 11. There is no evidence to warrant a finding that appellant intended to kill N. A. Bushnell as charged in the indictment. Hare v. State, 128 Tex.Cr.R. 203, 80 S.W.2d 963; Brown v. State, 135 Tex.Cr.R. 637, 122 S.W.2d 308; McMurrey v. State, 145 Tex.Cr.R. 439, 168 S.W.2d 858; Branch’s P.C. Sections 1636 and 1639.

The judgment of the trial court is reversed and the cause is remanded.  