
    Edward R. Swanson v. State
    No. 32,838.
    January 25, 1961
    
      
      D. Bart Mauzy, Houston 2, for appellant
    
      Dan Walton, District Attorney, Carl E. F. Dally, J. R. Mussehvhite, Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state
   McDONALD, Judge

The offense is aggravated assault, with punishment assessed at thirty days in jail.

The evidence reflects that the appellant and the injured party were in a cafe in the city of Houston when the difficulty started. Appellant was sitting on a stool at the bar, while Jackson, the injured party, was standing in front of him, holding an open knife in his hand. The two men talked together in low tones.

State’s witness, Ida Mae Johnson, testified that Jackson told her that the appellant owed him some money, after which she said to him (Jackson) :

“ * * * close the knife up and get out of here.”

The witness further testified that Jackson then went out the front door of the cafe onto the porch, following which appellant got off the stool, opened his knife, pulled the screen door open, and cut Jackson on the face.

Various witnesses said that Jackson was standing on the porch with a knife in his hand but that his hands were down at his side and that he never used the knife.

No formal bills of exception were filed.

Appellant makes two contentions, by informal bills of exception. The first is without merit. The trial court sustained the objection and instructed the jury to disregard the testimony complained of. The second objection was made to the introduction of the knife into the evidence.

The statement of facts reflects that prior to the making of the objection counsel for appellant had earlier allowed the knife to be introduced in evidence, stating at the time:

“We have no objection - your Honor.”

The evidence being sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.  