293 S.W. 822 | Tex. Crim. App. | 1927
Lead Opinion
Conviction is for aggravated assault and battery, the punishment being nine months imprisonment in jail.
Appellant sought a continuance on account of the absence of the witness Nichols. It is conceded by the state that proper diligence is shown to secure the attendance of this witness but insists that if the witness had been present he would not have been permitted to testify to the things set out in the application for continuance because they are conclusions only and not statements of any fact. We are inclined to believe this criticism of the application is well founded. Nowhere in the application is it averred that Nichols would have testified that he was present and saw the difficulty. It is not stated that witness would have testified to any fact from which the jury might have drawn conclusions but only that witness himself proposed to testify to conclusions.
Appellant devotes several pages of his brief to discussion of the refusal of a requested special charge which was designed to advise the jury of his rights where there was more than one *542
assailant. This charge is only marked "refused." There is no notation on it over the judge's signature showing that any exception was reserved to its refusal, and no separate bill is found bringing the question forward for review. It is essential that complaint of the refusal of a special charge be preserved by exception in one of the ways mentioned. Linder v. State,
Appellant was indicted for assault to murder one Reed. The state conceded that the felony charge could not be sustained and aggravated assault only was submitted. The court defined assault and informed the jury that it would become aggravated when serious bodily injury was inflicted. (Sec. 7, Art. 1147, P. C., 1925.) In applying the law the court told the jury in substance that if they found from the evidence that appellant committed an aggravated assault upon Reed by inflicting upon him seriously bodily injury, appellant would be guilty of an aggravated assault. Objection was urged to the form of the charge. Under the facts we think appellant could not have sustained injury thereby. That appellant cut Reed several times with a knife seems to have been a conceded fact, and there was no issue raised but that one stab went into the lungs and was quite serious. We are forbidden to reverse a judgment upon instructions given or refused unless an error is shown which was "calculated to injure the rights of defendant." What we have just said applies also to the criticism of the charge on self-defense. Taking the instruction upon that subject in its entirety we think the objections are not meritorious and that the jury could not possibly have been misled thereby to appellant's hurt.
The court furnished the jury with four forms of verdict, one providing for finding appellant not guilty, the other three providing for finding him guilty of aggravated assault and battery and for assessing the punishment by fine only, or by fine and "imprisonment in jail — months," or for only "imprisonment in jail — months." Objection was made because no form was furnished for a verdict of simple assault. This issue was not submitted, hence no necessity for a form of verdict as to that offense. Another objection was that the court having used the term "months" in the forms providing for imprisonment, it was calculated to impress the jury that it was the opinion of the court that appellant's punishment should be assessed at more than one month. Our opinions are not in harmony upon the *543
propriety of furnishing forms of verdict. Some hold it to be a commendable practice. Williams v. State, 24 Tex. Ct. App. 637,
Reed was permitted, over objection, to remove his clothing and exhibit to the jury scars left on his body by the wounds inflicted by appellant. These scars were several in number, being of an ugly and discolored appearance. The objection urged was that physicians present could testify to the nature and character of the wounds and that their exhibition to the jury tended to solve no issue in the case. This objection cannot be sustained. The state was seeking conviction of aggravated assault, based on the claims that the wounds inflicted were of a serious nature. Appellant, by his plea of "not guilty," had put the state upon proof of every material fact necessary to convict. One of these facts was the nature of the wounds. The state could establish this fact by any legitimate evidence at hand and appellant could not dictate that the state proceed in any particular manner to make out its case. The wounds exhibited enabled the jury to pass upon the question as to whether serious bodily injury had been inflicted. The fact that physicians could testify, and did later testify, that Reed was confined in the hospital ten days and that the wounds were of a serious *544
nature would not render inadmissible their exhibition before the jury. We are referred by appellant to the cases of Newman v. State, 85 Tex.Crim. Rep.,
Appellant became a witness and while being cross-examined he was asked by the District Attorney if he had not within the last five years been charged with "bootlegging." Appellant's attorney objected to the question, insisting that the District Attorney make it clear whether he meant a charge by complaint or indictment. The District Attorney declined to formulate his question to conform to the objection. Further inquiry elicited the information that within five years appellant had been charged by complaint with transporting intoxicating liquor and had been arrested and placed in jail on said charge, but said he had never been tried therefor. The inquiry seems to have rested at this point. The objections urged are most general being that the questions were improper, immaterial, prejudicial, confusing and misleading. It is well settled that charges by complaint of other felonies cannot be proven for the purpose of impeachment where a grand jury has intervened and the matter charged by complaint has not been merged into an indictment. Newton v. State, 94 Tex.Crim. Rep.,
After the evidence came in showing that appellant had been charged by complaint with transporting intoxicating liquor the court immediately told the jury orally that it could not be considered as any circumstance of appellant's guilt in the case on trial, but that if considered at all, it could only be used by them in passing upon the credibility of appellant as a witness. Fry v. State, 86 Tex.Crim. Rep.,
We have discussed all questions brought forward for review except a matter raised by bill of exception No. 4 relating to placing witnesses under the rule. This point is not briefed. However, we have examined the bill and think it presents no error.
The judgment is affirmed.
Affirmed.
Addendum
Taking issue with what we said in our opinion, appellant asserts in his motion for rehearing that his application for continuance described what he expected absent witness Nichols to testify, as facts and not conclusions. This matter seems to solve itself by quotation of what the application sets forth as the expected testimony of said witness. *546
Suppose witness present and on the stand and asked: "Did Reed without provocation assault this defendant?" Also, "Was Reed the aggressor in the transaction out of which this indictment arose?" Or this: "Was the defendant in said transaction acting solely to protect himself?" Or the following: "Was he acting solely to protect his life and his body from serious bodily harm?" Or this: "Was this defendant not at any time the aggressor?" Or either of the following: "Did Reed bring on the difficulty?" "Did Reed provoke the difficulty?" "Did Reed assault defendant in a violent manner?" "Was defendant in said transaction entirely on the defensive?" We have presented in these quotations all of the supposed "facts" stated in the application as expected to be proved by the absent witness save and except the single fact that Reed "cursed and abused this defendant." Inspection of each of the quoted statements, save the last one, discloses that same does not call for an answer which is a fact, but an answer which is merely a conclusion. We have no means of knowing whether the language quoted in the motion referred to in Baker v. State,
We are still of opinion under the facts that a charge telling the jury that appellant had the right to defend himself against an unlawful attack, and to use all force necessary to repel such attack, viewing same from his standpoint and his alone — was sufficiently comprehensive.
Appellant argues at length that in furnishing to the jury forms for possible verdicts and failing to furnish one for simple assault, the learned trial judge fell into error. He contends that the issue of simple assault was involved, and that the bill of exceptions reserved to the admission in evidence of the scars resulting from the wounds inflicted upon the injured party, was approved with the statement that said evidence was admitted for the purpose of showing the seriousness of the assault, and that this establishes the fact that the issue of simple assault was in the case, arguing that unless the evidence as to the scars aided in solving the question as to whether the wounds inflicted amounted to serious bodily injury or not, same served no useful purpose and was inadmissible — and that being admitted for the purpose of aiding in solving the issue of the seriousness of the wounds, made certain the fact that that issue was in the case, *547
and hence the court should have submitted the law of simple assault. We have always held that when forms of verdicts are submitted, forms for all verdicts permissible in the case should be given. Stuckey v. State, 7 Tex.Crim. App. 179; Williams v. State, 24 Tex.Crim. App. 637; Thomas v. State,
Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.
Overruled.
