
    ROSS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1911.)
    1. Homicide (§ 290) — Assault to Murder— EvideNce — Instructions.
    Where, on a trial for assault to murder, the evidence showed that no serious injury was inflicted on prosecutor, and that accused used a small knife, the court should charge Pen. Code 1895, art. 717, providing that the instrument by which a homicide is committed must be taken into consideration in judging of the intent of accused, and where the instrument is one not likely to produce death it will not be presumed that death was designed, unless from the manner in which'it was used such intent evidently appears, and thus present affirmatively that, if the jury did not believe that the knife, from its size and manner of its use, was a deadly weapon, it could not be presumed that death was intended, and that unless they so found accused was not guilty of assault to murder, though he was guilty of a lesser grade of assault.
    [Ed. Note.- — For other cases, see Homicide, Cent. Dig. § 595; Dee. Dig. § 290.]
    2. Criminal Law (§ 719) — Trial — Argument of District Attorney.
    The district attorney, in his argument to the jury, should keep himself within the record, and not so conduct himself as to subject himself to the criticism that he is seeking to arouse the passions of the jury by unfair methods.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.]
    3. Criminal Law (§ 695) — Evidence — Objections.
    An objection to the admission of evidence should state the grounds of the objection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. § 695.]
    4. Criminal Law (§ 1091) — Appeal—Record.
    The grounds of objection to the admission of evidence stated at the time of the making of the objection thereto should be incorporated in the bill of exceptions complaining of the admission of the evidence, and a mere statement, “to which ruling of the court in admitting the testimony defendant objects,” is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2935; Dec. Dig. § 1091.]
    Appeal from District Court, Bexar County; Edward Dwyer, Judge.
    Arthur Ross was convicted of assault to murder, and he appeals.
    Reversed, and cause remanded.
    T. I-I. Ridgeway, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case the defendant was charged with the offense of assault to murder, and on a trial was convicted, and his punishment assessed at 10 years’ confinement in the penitentiary.

The testimony is rather meager on the specific intent to kill. The state’s testimony is about as follows: Some white people and some negroes were riding on a street car in the city of San Antonio. The conductor changed the place for the negroes to sit, and directed them to change their seats. The appellant, Arthur Ross, in changing his seat, is alleged to have stepped on a white lady’s foot, and, upon her remonstrating, is said to have remarked, “Keep your d-n feet out of the way.” Upon her husband stating that he should not curse in the presence of ladies, he cut him with a knife, striking him on the shoulder and cutting a gash about five inches in length. The doctor testified that the wound might have been a serious one, but for the fact that the collar and clothing prevented a deep wound being inflicted. The state offered' no proof as to the size of the knife used, or that the wound was a serious one, other than it might have been serious, but for the protection of the collar and clothing. The injured party was not confined to his bed. The appellant’s testimony denied the use of the language to the lady, and claimed that he cut Mr. Eastland at a time when he (Eastland) was making an assault on him; that the knife he used was a small pocket knife.

1. The court, in a proper charge, submitted the issue of self-defense. The jury finding against appellant on this issue, there is no ground for complaint. But the defendant in his motion for a new trial raises the issue that the court nowhere in his charge affirmatively submits to the jury whether or not the knife, from its size and the inode and manner of its use, was an instrument calculated and likely to produce death. Article 717 of the Penal Code of 1895 reads 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.” We think that, in view of the fact that no serious injury was inflicted, and the only testimony adduced on the trial being that it was a “small knife,” this article of the statute 'should have been given in charge, and presented affirmatively; that is, if the jury did not believe that the knife, from its size and the mode and manner of its use, was a deadly weapon, it would not be presumed that death was' intended, and unless they so found the appellant would not be guilty of an assault to murder, although he might have been guilty of some lesser grade of assault.

2. Complaint is made of many remarks made by the district attorney in his address to the jury ; but inasmuch as the court, in approving the bills of exception, states he instructed the. jury not to consider such re- ' mark's, we will not consider such bills, further than to say that the district attorney should always keep himself within.the record, and not so conduct himself as to subject himself to the criticism that he is seeking to arouse the passions of the jury by unfair methods, and be reproved by the court four or five times during one address.

3. Several bills of exception are reserved to the admissibility of certain testimony, but they are not in such shape that we can re'view the testimony. At the time objection is made to the admissibility of testimony, the grounds of the .objection should be stated, that the trial court may rule intelligently, and these grounds should be incorporated in the bill. A mere statement, “To which ‘ ruling of the court in admitting the testimony defendant objects,” is insufficient. The rea-sbns should be given.

For the error pointed out, the judgment is reversed, and the cause is remanded.

PRENDERGAST, J., not sitting.  