No. 14321 | Tex. Crim. App. | Jun 10, 1931
Opinion on the Merits
ON ITS MERITS.
A sufficient caption having been supplied, the appeal is reinstated and the case considered on its merits.
The conviction is for an aggravated assault under an indictment charging assault with intent to murder. On a former trial under the same indictment appellant was convicted of assault with intent to murder and his punishment assessed at two years confinement in the penitentiary. Upon appeal to this court the judgment was reversed. See Howle v. State, 114 Tex. Crim., 612" court="Tex. Crim. App." date_filed="1930-04-02" href="https://app.midpage.ai/document/howle-v-state-3947717?utm_source=webapp" opinion_id="3947717">114 Texas Crim. Rep., 612, 26 S. W. (2d) 651. The evidence adduced on the present trial is different in some respects from that found in the record on the former appeal.
While at a dance Jim Morgan, the injured party, had a quarrel with Charlie Housenfluke, but no physical encounter ensued. It appears that Housenfluke was drunk. Touching the difficulty with appellant, Jim Morgan’s testimony was, in substance, as follows: He had started to
Appellant’s plea was self-defense, and he introduced testimony to show that Jim Morgan attacked him first, using a pair of brass knucks. Appellant testified, in substance, that he saw Jim Morgan approach Charlie Housenfluke, and asked him not to molest him, as Housenfluke was drunk; that when he made this statement to Morgan, Morgan said “I will knock h — 1 out of you,” and hit him with a pair of brass knucks. Appellant further testified that Morgan knocked him down and got on top of him; that Morgan continued to hit him with the brass knucks, and choked him; that he got out his knife and cut Morgan to make him get off of him. Appellant denied that he had had any previous trouble with Morgan. Further, he denied that he and his brother, Elmer Howie, acted together in attacking Morgan.
The wounds inflicted upon Morgan being of a serious nature, he was taken to a hospital for treatment.
The court charged on the law of self-defense, and also submitted an instruction on provoking the difficulty. Although it is shown in the opinion on the former appeal that appellant did not object to the submission of an instruction on provoking the difficulty, on the present trial by timely exception the charge was challenged on the ground that the evidence failed to raise the issue. The opinion is expressed that the exception was well taken. Under the evidence, the only question was this: Who made the first attack? The state’s testimony was to the effect that appellant struck the first blow with a knife, inflicting a serious wound on the injured party, and that the injured party did not strike appellant until he had been attacked by appellant with the knife. From appellant’s standpoint, the injured party began the assault on his own initiative by striking him with a pair of brass knucks. Thus it is seen that the evi
We think it was proper to submit the law of principals. We are of the opinion, however, that, under the evidence, the court should, in submitting the converse of the law of principals, be guided by the suggestion found in Soria v. State, 83 Tex. Crim., 343" court="Tex. Crim. App." date_filed="1918-05-01" href="https://app.midpage.ai/document/tomas-soria-v-state-3907525?utm_source=webapp" opinion_id="3907525">83 Texas Crim. Rep., 343, 203 S. W., 57. Appellant’s special charge on the subject was refused. Of course if appellant and Elmer Howie were not acting together as principals, and Elmer Howie stabbed the injured party to defend appellant from an attack on
Appellant’s witness, Mrs. Bernice Reed, gave material testimony in behalf of appellant. In an effort to impeach said witness, the state, over proper objection by appellant, elicited from Miss Verdis Reed, a witness-for the state, the fact that Mrs. Bernice Reed said to her on the night of the difficulty: “Let us all go home, there is fixing to be trouble here, Elmer and Fowler (meaning appellant and his brother) is in the other room with knives out wanting to fight.” Bearing in mind that it was-the state’s theory, given support in the testimony, that appellant and his-brother, Elmer Howie, had conspired to attack the injured party, it would seem that the opinion of Mrs. Bernice Reed that there was going to be trouble would be calculated to lend weight to the position taken by the state. The statement that “there is fixing to be trouble here” was inadmissible. See Drake v. State, 29 Texas App., 265, 15 S.W., 725" court="Tex. App." date_filed="1890-11-01" href="https://app.midpage.ai/document/drake-v-state-4907832?utm_source=webapp" opinion_id="4907832">15 S. W., 725; Shannon v. State, 118 Tex. Crim., 505" court="Tex. Crim. App." date_filed="1931-05-06" href="https://app.midpage.ai/document/shannon-v-state-3951371?utm_source=webapp" opinion_id="3951371">118 Texas Crim. Rep., 505, 38 S. W. (2d) 785.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
Under an indictment charging him with assault with intent to murder, appellant was convicted of an aggravated assault and his punishment assessed at a fine of $250, and confinement in jail for ten days.
The caption fails to show the date of the adjournment of the trial court. Under the decisions of this court the appeal must be dismissed. Sherman v. State, 115 Texas Crim. Rep., 414, 28 S. W. (2d) 801, and authorities cited.
The appeal is dismissed.
Dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.