152 S.W.2d 349 | Tex. Crim. App. | 1941
Appellant was convicted of an assault to murder with malice upon Chester Brogdon, and was by the jury sentenced to a term of three years in the State penitentiary.
The facts as developed show that appellant had a daughter named Ruby, twenty-three years of age, who was the wife of Fred Webb. That this daughter had been keeping company with Brogdon while her husband was absent from home, and such association was not approved by her father, the appellant. That
Brogdon was later found in the yard with a bullet in his back. It had struck the twelfth vertabrae, and he was permanently paralyzed from the waist down. Appellant then came out of the house and asked two boys to take his truck and carry the injured person to a hospital. These boys finally borrowed a car and did take such person to a hospital. Appellant claimed all the shots were fired in the dark and in the scuffle in the house; however the screen door gave evidence that at least some of the shots were fired from inside the house outward.
Bill of exceptions No. 1 relates to the testimony of Dr. Harrell, the physician who was treating the injured party, wherein he testified relative to the injuries received by such party, and to the fact that they were permanent, and had resulted in a permanent paralysis of the body from the waist down.
When charged with a specific intent to kill, it becomes the duty of the State to show such intent, see McCoy v. State, 102 S. W. (2d) 206, and a plea of not guilty puts the State upon proof thereof. See Gandy v. State, 129 S. W. (2d) 661. There was a denial of any intent to kill upon appellant’s part and a
It is also to be noted that the physician did testify without objection that the witness would have to be assisted into and out of the witness chair, and surely the jury could not avoid seeing the witness as he offered his testimony.
It is true, however, that the careful trial court had the jury retired when the injured party was brought into the courtroom on a stretcher and placed in the witness chair, and they were again retired when the witness was carried from the court room.
A further bill of exceptions appears because of the fact that the stretcher upon which the injured party was brought into the court room remained in the court room while the witness was on the stand. The court qualifies this bill by saying that such cot was placed outside the rail near the end of the jury box; and that the doctor had testified that he (the injured party) was paralyzed from the waist down and could not walk.
The jury already knew that Brogdon could not walk, and that such condition came from the bullet fired into his back by appellant, and naturally, being unable to walk, some one would have to carry him and place him in the witness chair. Evidently knowing such, we do not think that the presence of the stretcher in the court room was of sufficient importance to be called a seriously harmful error.
From the record presented we see no serious error evidenced herein. The judgment is therefore affirmed.