Danzig v. State

DOUGLAS, Judge,

dissenting.

The majority reverses and holds that the evidence is insufficient to support the conviction. The indictment, omitting the formal parts, alleged that she “did then and there use a knife, a deadly weapon, intentionally threaten imminent bodily injury to James A. Naraine.”

The evidence shows that at approximately 3:00 o’clock in the morning on a street in Killeen on May 5,1975, appellant and Patricia Williams became involved in an altercation with the complaining witness James A. Naraine. Naraine suffered stab wounds in the back, left arm and on his nose near the eye. He was treated at Darnell Army Hospital where eight stitches, including two on the nose, were required to close his wounds. Naraine testified that both appellant and Patricia Williams stabbed him with knives. He described them as folding “penknives” having blades of approximately three to four inches long.

The indictment charges by use of a deadly weapon. The extent of the complaining witness’ injuries are of no consequence. The threat of imminent bodily injury with a deadly weapon is all that is required.

Appellant relies on Henderson v. State, 55 Tex.Cr.R. 170 , 115 S.W. 588 (1909), which held that an ordinary pocketknife with a three-inch blade is not per se a “deadly weapon.” No evidence was introduced in Henderson to show the manner in which the knife was used and the conviction was reversed.

Although a knife is not a deadly weapon per se, it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Ables v. State, 489 S.W.2d 910 (Tex.Cr.App.1973); Gillingham v. State, 167 Tex.Cr.R. 116 , 318 S.W.2d 659 (1958).

The court, in its charge, required the jury to find that the assault was made with a *303 deadly weapon, defining such term as a weapon which from the manner used is calculated or likely to produce death or serious bodily injury.

The jury having found that the knife used was, from the manner of its use, calculated or likely to produce death or serious bodily injury under the evidence mentioned above, their verdict should not be disturbed. In the Gillingham case, the Court held that a switchblade knife with a blade 3 ¼ inches in length and ½ inch in width would come within the definition of a deadly weapon when used to slash in the vicinity of the face and neck. The Court wrote that whether a knife is to be considered a deadly weapon depends upon its size and the manner of its use and upon its size, shape and capacity to produce death and that, when the use made of the knife produced neither death nor serious bodily injury, the test then is whether the manner in which it was used was calculated to do either. The evidence in the record before us is sufficient to show that appellant used the knife in a manner which was calculated or likely to produce death or serious bodily injury. The jury was the trier of the facts. It was the jury’s prerogative to determine the credibility of the witnesses and the weight to be given to their testimony. This Court is not at liberty to substitute its findings for those of the jury. Ferrell v. State, 464 S.W.2d 851 (Tex.Cr.App.1971).

It does not take a doctor’s testimony to prove that the knife wielded as it was in this case could cause death.

This Court has held that an automobile is not a deadly weapon per se but, that through its manner of use, it could be one. When someone tries to run over another with an automobile would the majority require proof from an expert that an automobile is a deadly weapon? The majority is not giving jurors credit for knowing facts that are of common knowledge.

The majority has to overrule the well reasoned Gillingham case to reach its erroneous result.

No reversible error having been shown, the judgment should be affirmed.