56 S.W. 926 | Tex. Crim. App. | 1900
Appellant was convicted of an assault with intent to murder his divorced wife, Sallie Hamilton, and his punishment assessed at confinement in the penitentiary for a term of five years.
In bills numbers 1, 2, and 3, appellant urges the following matters as error, to wit: In bill number 1 it is shown the State proved by Sallie Hamilton, the injured female: That appellant was her divorced husband. That they had been married three or four years. That, before the shooting in this instance, appellant had frequently assaulted witness. One night, about a year before, he shot at her and beat her up; and when witness got away, by running around the *651 bed, he took a slat from the bed and beat her mother so she was laid up for several days in bed. Witness' mother interceded for her, and appellant turned upon and beat her mother. Prosecutrix stated she had scars on her person now, made by defendant. On one occasion he stabbed her with a knife. He had also thrown smoothing irons at her, and beat her up with sticks of wood. Prosecutrix and appellant lived in the same house until she secured the divorce. The State offered this testimony on the ground of malice, and it was admitted. Appellant objected upon the following grounds: (1) That the same was too remote, and irrelevant to any issue on the trial of this cause, and did not tend legitimately to prove any controverted fact. (2) Any previous assaults upon and cruel treatment by appellant of his wife and mother were immaterial to any issue made by the pleadings in this case. (3) Said evidence shows such other assaults to be remote in point of time, that all such assaults had been condoned by the wife, and that she and defendant continued to live together thereafter. (4) It raised collateral issues, and called upon appellant to disprove or justify each of the transactions, with which he was not charged, or in any way notified he would be expected to meet. (5) It was calculated to improperly prejudice the jury against him and his cause, and to improperly lead them to lean towards a conviction and punishment of appellant for matters not charged against him in this case. (6) An assault upon the mother could not prove malice against the daughter, and was too remote. In bill number 2, the State introduced Jennie Hamberger, who, after stating she was the mother of the injured female, Sallie Hamilton, testified, over appellant's objection: That before appellant shot at Sallie Hamilton, which shooting occurred on March 18, 1899, and for which he is charged with assault with intent to murder in this case, appellant had fought and whipped Sallie a number of times. They got along all right some of the time, but much of the time they did not. He beat her unmercifully, — once with the window stick; another time, stabbed her with a knife; and on another occasion he began beating Sallie, and when she ran behind the bed, and witness begged appellant to desist, he took a bed slat and beat witness with it until she was compelled to go to bed. Bill number 3 complains that the State asked Jennie Hamberger the following question: "Were you not, during the time that Sallie and appellant had their troubles, and up until the divorce, a big, strong, healthy negro woman?" To which the witness answered: "Yes; but this beating me up so with the bed slat is what caused me to be this way, the doctor says." Appellant also objected to all this testimony on substantially the same grounds stated above with reference to bill number 1.
In Leeper v. State, 29 Texas Criminal Appeals, 63, we held that where several assaults are committed at the same place, and almost simultaneously in point of time, and of the same manifest purpose, and were so closely connected as to relate and be illustrative of each other, making each res gestae of the other, then said assaults so committed, *652
are admissible; moreover, that said testimony is admissible and competent upon the question of motive, and was not such extraneous matter as to require the trial court to charge the jury in their consideration of extraneous matter as to the specific purposes for which it is admitted. The testimony of the prosecutrix's mother in this case clearly comes within the rule laid down in the above cited case. The assault upon the mother, occurring contemporaneously with the previous assaults upon the prosecutrix, is res gestae, and illustrative of the animus, motive, and malice of appellant in making the previous assaults upon the prosecutrix. Furthermore, we have frequently held it is permissible for the State, as going to show motive and malice on the part of appellant, to prove by prosecuting witness that appellant had previously made several assaults upon prosecuting witness, and where such testimony could not, in the nature of things, be used by the jury for any purpose other than to illustrate the motive, malice, and intent of appellant in committing the assault for which he is then being tried, clearly such testimony is not only admissible for said purposes, but it is not the duty of the trial court to limit such testimony in his charge to any specific intent, since its admission can not be considered for any purpose other than as above stated. For a full discussion of this matter, see Kitchen v. State, 26 Texas Crim. App., 165; Hudson v. State, 28 Texas Crim. App., 323; Hall v. State, 31 Tex.Crim. Rep.; Wilkerson v. State,
Bill number 5 insists that the court erred in refusing to apply in his charge the reasonable doubt directly to the degrees of offense. An inspection of the charge does not bear out appellant's contention, for the court gave the reasonable doubt on the degrees of the offense.
In the sixth bill he complains that the court erred in failing to charge: "Before you can convict defendant of an assault to murder, you must find, beyond a reasonable doubt, that, at the time the gun fired, defendant had in his mind the deliberately formed intent to kill Sallie Hamilton; and, if you do not so find, you will acquit defendant of an assault with intent to murder." The court did not err in refusing to give this charge, since one can be guilty of an assault with intent to murder upon either express or implied malice, and hence it is not necessary that the "deliberately formed intent to kill" should exist, but if the intent to kill arose from a sudden impulse, without adequate cause, as indicated in the usual charge of murder in the second degree, the assault may still be an assault with intent to murder.
We have carefully reviewed appellant's able brief, and listened with pleasure to his strong oral argument, but we feel constrained *653 to say the record before us discloses no such error as authorizes a reversal. The evidence is ample to support the verdict, and the judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled without any written opinion. — Reporter.]
