155 S.W. 210 | Tex. Crim. App. | 1913
Appellant was convicted of burglary and his penalty fixed at two years in the penitentiary.
The evidence is amply sufficient to show that for some two or three years prior to July 29, 1911, the date on which the offense is charged to have been committed, appellant lived with and probably "kept" Patsy Foster, the injured party; that some time before the commission of the offense she quit him and went back to her mother's; that, it seems, another negro man was paying her attention and had gone with her and brought her back from some gathering the night the offense is charged; that soon after her return from this party with the other negro man the appellant shot into the house of her mother, some of the shot striking her, and showing clearly from the circumstances, his intention to injure her. The evidence is amply sufficient to sustain the verdict.
The testimony of Patsy Foster, the injured party, showed and she testified positively, that it was the appellant who shot into the house and shot her and that she saw him at the time and immediately thereafter *597 when he ran away from the house. No charge on circumstantial evidence was, therefore, necessary. It is only when the evidence to sustain a conviction is wholly circumstantial that such a charge is required.
Appellant's bill that a question by the prosecuting officer to Patsy Foster wherein she was asked what appellant's idea was in wanting her to live with him, and "did he want her to sleep with him?" was leading, clearly does not show that a leading question, even if this was, was not permissible. (Carter v. State,
Antecedent menaces, quarrels, assaults and batteries, and grudges may always be shown to prove motive. (Sullivan v. State, 31 Tex.Crim. Rep..) In this case the court, therefore, did not commit any error in permitting the State to prove the previous assaults and assaults and batteries committed by appellant upon said Patsy Foster in order to show motive, and no charge was necessary limiting the effect of such evidence, because motive is a part of the proof to establish the main offense. But if it was necessary to limit such proof, the court did so in this case properly by charging in a separate paragraph, this: "The defendant is on trial on the charge contained in the indictment only. You are charged that if any evidence has been introduced as to any other offense, you cannot convict him in any event of such offense, if any." Millican v. State,
Patsy Foster, as stated above, testified positively that appellant shot into the house and shot her at the time the offense is charged; that she saw him, identified him and saw him run away immediately after he shot. In order to impeach her, appellant asked her if she did not state to various persons, naming them, the next day and later, in effect, that she did not know who shot her but she thought it was appellant. She denied making such statements. Appellant then put witnesses on who testified she did make such statements. The State was then properly permitted to corroborate her by proving by the constable that early the next morning after the shooting the night before, he investigated the matter and that Patsy Foster then and there told him that it was appellant who shot into the house and shot her that night. Sec. 874, Branch's Crim. Law, where a large number of the cases are collated. No charge was asked as to the effect of this supporting testimony. Any charge on that subject would have been on the weight of the evidence and specially called attention to the testimony of the complaining witness and this testimony in support of it. No reversible error was committed under the circumstances in not charging thereon.
The appellant has called our attention to the fact, in what he calls his supplemental assignments of error filed long after the adjournment of the court, that the sentence of the appellant, instead of being for burglary, with which he was charged and convicted, and the judgment *598 of conviction and verdict so showed, that he was sentenced for assault with intent to murder. This, of course, was an error, but as the indictment, charge, verdict and judgment thereon clearly show that he was convicted for burglary instead of assault with intent to kill, under the statute the final sentence will be set aside and this court will, and does now here direct and require that the sentence shall be so made and changed as to show that he was and is sentenced for burglary, instead of an assault with intent to murder. With this correction, there being no reversible error presented, the judgment is affirmed. Affirmed.
