
    PERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1911.)
    1. Infants (§ 68) — Punishment.
    Code Cr. Proc. art. 1145, requiring convicts for less than five years to be confined in the reformatory, where they are not more than 16 years old, does not require a finding as to age, where accused is conceded to be sufficiently old to be criminally responsible, and his punishment exceeds five years.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 174, 175; Dec. Dig. § 68.]
    2. Criminal Law (§ 1166*) — Continuances— Absent Testimony — Materiality.
    Though Code Cr. Proc. art. 1145, requires convicts for less than four years to be confined in the reformatory, where they are not more than 16 years old, it was not reversible error to refuse a continuance for absent testimony as to accused’s age, where the jury had an opportunity to observe him, and there was no suggestion of mental irresponsibility, and his punishment was fixed at seven years.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3111; Dec. Dig. § 1166.)
    3. Criminal Law (§ 829) — Instructions.
    An omitted instruction, that if accused believed that witness was about to seriously injure him, and accused wounded him to free himself and not with intent to murder, accused was not guilty, was sufficiently covered by an instruction that on such belief accused could defend himself, and was not bound to retreat to avoid the necessity, or apparent necessity, of wounding witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    4. Criminal Law (§ 789) — Instructions.
    Accused’s right to the benefit of reasonable doubt throughout the case, including the issue whether he wounded a witness to free himself or with intent to murder, was sufficiently covered by instructions that if the jury believed beyond reasonable doubt that the assault was unlawful, but had reasonable doubt as to whether it was with intent to murder or was an aggravated assault, accused was entitled to the benefit thereof, and that one accused is presumed to be innocent until his guilt is shown beyond reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922; Dec. Dig. § 789.]
    Appeal from District Court, Bastrop County; Ed. R. Sinks, Judge.
    Allen Perry was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For otter eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

On June 30th of 1910 appellant was convicted in the district court of Bastrop county on a charge of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a period of seven years.

While the facts were in dispute, there is sufficient evidence to sustain the verdict and authorize the jury to believe that the attack on the assaulted party was substantially unprovoked, and was under such conditions as to stamp it of a quality of assault with intent to murder. When the case was called, appellant made an application for a continuance for want of the testimony of several witnesses. The diligence may be conceded to be sufficient. By some of these witnesses appellant sought to prove that he was at the time of the trial, ás well as at the time of the commission of the offense, under the age of 16 years. By others he desired to prove contradictory statements made by the assaulted party, John N. Swenson, and by others that appellant had a lick on his head showing fresh blood the morning after the difficulty, and that Mr. Swenson had stated on the night of the day he was assaulted that he had been assaulted by Mexicans, and that several Mexicans were first arrested charged with the offense. The case was tried, as stated, on June 30th. It appears that the term of court at which he was convicted adjourned on the 13th of July thereafter. In this connection it may be stated, further, that appellant complains that the verdict did not find his age, which it is claimed was required to be done. Some of these matters, as well as others arising on the record, we will discuss in due order.

1. Article 1145 of our Code of Criminal Procedure is as follows: “When upon the trial and conviction of any person in this state of a felony it is found by the verdict of the jury the defendant is not more than sixteen years of age, and the verdict of conviction is for confinement for five years or less, the judgment and sentence of the court shall be that the defendant be confined in the house of correction and reformatory instead of the penitentiary for the term of his sentence, and that such defendant be conveyed to the house of correction and reformatory by the proper authority and there confined for the period of his sentence, and for such service such officer shall be paid the same fees that he would be allowed for conveying such convicts to the penitentiary; provided, that the age of the defendant shall not be admitted by the attorney representing the state, and it shall be proved by full and sufficient evidence that the defendant is not more than sixteen years of age before the judgment herein provided for shall be entered; provided, the jury convicting shall say in their verdict whether the convict shall be sent to the penitentiary or to the reformatory.”

Under this article it is held, in the case of Watson v. State, 49 Tex. Cr. R. 371, 92 S. W. 807, as well as Byrd v. State, 55 Tex. Cr. R. 390, 116 S. W. 1146, that where the punishment was for a period less than five years, and where the evidence raised the issue of the defendant being under the age. of 16 years, it is indispensable that the jury should find and state in their verdict what his age was. 1't will be observed, however, by the terms of the statute above quoted, that persons convicted for a term beyond five ygars may not be imprisoned in the reformatory. Since in this case the verdict is for seven years, no good and useful purpose could be served by finding his age. There was no contention that he was not of sufficient age and discretion to be amenable to the law for his offense. We think a true construction of the statute is that, where it is conceded that one charged with crime is of sufficient discretion and age to be punished therefor, where the punishment assessed against them exceeds a term of penal servitude beyond five years, it is not required that the jury should find the age of such person in their verdict.

2. In reference to the continuance, so far as based on the witnesses by whom it is expected to show appellant’s age, this cannot be held, under the facts here, material. None of these witnesses for whom the application was sought had or claimed to have any knowledge of the facts of the difficulty. Where, as in this case, appellant had testified before the jury, they had opportunity of observing him, and where there was no suggestion of lack of such sanity or intelligence as to not make him subject to punishment, and where the jury have awarded him a punishment in excess of five years, it would seem that the desired testimony in respect to his age was not of sufficient importance to justify or require the court to continue the case.

3. Complaint is made of the charge of the court, that it failed to instruct the jury that if they believed that John N. Swenson had his arm around the neck of the accused, and that appellant believed from his standpoint that Swenson was about to do him serious bodily harm, and that he cut him in order to get loose and not with intent to murder hiffi, the said Swenson, then he would not be guilty of assault with intent to murder. The substance of this charge was given to the jury. In the eighth paragraph of the court’s charge he instructed the jury as follows: “If you believe from the evidence that the defendant did, with a knife, cut the said John N. Swenson, and you further believe from the evidence that before he did so the said John N. Swenson did assault him, and that from the manner of such assault the defendant believed that he was in danger of death or serious bodily injury at the hands' of the said John N. Swenson, then in that case he had the right to defend himself, and cut the said John N. Swenson, and he would not be required to retreat in order to avoid the necessity, or apparent necessity, of cutting the said John N. Swenson, and if you so find, you will return a verdict of not guilty.”

4. Again, it is claimed that the court failed to instruct the jury that the reasonable doubt was with appellant on all issues through the case. That if they had a reasonable doubt as to whether appellant intended to kill while being held around the neck by Swenson, if so held, or to get loose from Swenson, then the doubt should be in favor of appellant, and they should acquit him of assault with intent to murder. This phase of the case was covered in paragraph 9 of the court’s charge, which is as follows: “If you believe from the evidence, beyond a reasonable doubt, that the. defendant did unlawfully commit an assault upon the said Jolm N. Swenson, but you have a reasonable doubt as to whether such assault was an assault with intent to murder, or an aggravated assault, then you must give the defendant the benefit of the doubt, and in such case, if you find him guilty, you cannot find him guilty of a higher grade than aggravated assault.”

Again, in the eleventh paragraph of the court’s charge the jury were instructed as follows: “The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case you have a reasonable doubt as to the defendant’s guilt, you will acquit him, and say by your verdict, not guilty.”

It has been quite frequently held that, where the doctrine of reasonable doubt is applied to the case generally, it is sufficient.

A careful inspection of the record has not convinced us that there is any merit in any of the matters relied upon, and finding no error in the proceedings of the court below, the judgment is affirmed..

PRENDERGAST, J., not sitting.  