*1 Eugene Copeland v. The State. January 1938. 19, No. 19332. Delivered Rehearing (without oрinion) 1938. February 23, written denied Sherman, Cox, &Cox
Lloyd Davidson, Austin, for the State. W. Presiding Judge Robbеry by is the Morrow, . fense; penalty at assessed confinement in years. pеriod five a regular. us
The indictment The record is before exceptiоn. statement of facts or without bills trial, In the of the evidence adduced absence appraise presented matters in the motion is unable new trial. having perceived justifying reversal, error been No is aifirmed.
Fred Covert v. State. January Delivered No. 19288. Rehearing February denied *2 The Greer, Canton, Point, Dawson,
Earl M. of A. A. Wills and of for Orsborn, Canton,
L. County Attorney, Lloyd аnd Davidson, Austin, the State. Judge
Christian, . The offense is assault with intent malice; punishment, murder without in the confinement year. for one charged It was in the made indictmеnt that the assault was on I. officers, peace S. Mr. Jr. Neal and Mr. who werе appellant public place in a in an intoxicated con- dition and they carried him to his home. After had returned to appellant pistоl town secured a and went to the cafe where the together. Drawing рistol pointing officers were and it at Robertson, appellant you game said: “If are let’s see it.” Neal grabbed pistol quote and was shot in the аrm. from his We testimony as follows: enough my
“I was close [appellant] to him to reach out with gun, gun go left hand and reach the and the didn’t off until I grabbed off, grabbed judge, just it—well it I went at the time I maybe just it or positive before. I I couldn’t be but know the gun up.” went off before I turned it cocked, pistol testimony that the and the was was trigger.” “easy to the effect that it was on the Appellant testify did not аnd no introduced witnesses. support We deem the evidence sufficient tо the conviction. See Smith v. S. W. judgment
The is affirmed. foregoing opinion Appеals has of the Commission of Judges Appeals been examined of the оf Criminal approved by and the Court.
ON MOTION FOR REHEARING. Judge appellant complains Grаves, . The in his motion rehearing to base that the evidence which is insufficient judgmеnt first, testi- the witness Ike Neal because right arm, later fied at one and on timе that he was shot in the that testified the witness he was shot the left arm. We think doubtless was shot made a mistake he testified that he when testimony say the left arm. he had a doctors all that right arm, testimony the other flesh wound in and the right witnesses arm. аlso shows that he was shot We ground disturbing see no can because witness madе was an inadvertent statement as to which arm shot in. suggested
It is also in- such motion *3 Robertson, by to T. and did tended shoot a man the of J. name Neal, to shot. In not intend shoot the Ikе who was witness State, Rep. v. it seems that the Smith 95 S. W. attempted by to Martin and kill a wоman name of the Ethel accidentally by name Reed while stabbed a woman of Alice trying kill in that: to Ethel Martin. It was held such Texas, at one “It is the settled law in where an accused shoots unintentionally party, party and would kills anоther be killing degree, party if the of murder in the second murder, to or he would intended be killed would have constituted manslaughter guilty killing if party be second manslaughter regard to the fense would have constituted kill,” citing large party he tо of cases. intended number fully This also in the case of Richards matter is discussed C., says: Rep. “One Article P. v. intending Texas Crim. felony preparing
to commit a and who act executing through do an or the same shall mistake or acсident done, felony, which, voluntarily would shall other act if abe felony actually punishment receive the affixed committed.” to according appellant’s own contention seems to us committing an purpose assаult he went upon the cafe for Neal, perceiving purpose, at- T. and Mr. J. him, tempted to Mr. Neal in the arm. Under disarm and he shot why not the above cited we see no reason he would be cases guilty an with intent to murder without malice on jury, motion will therefore as and his be overruled.