30 Tex. Ct. App. 642 | Tex. App. | 1892
This is a conviction for an assault with intent to murder, with two years confinement in the penitentiary as the punishment. But two questions are presented.in the very elaborate brief and argument for appellant: (1) The sufficiency of the evidence to sustain the verdict. (2) Was there error in the charge of the court?
We have carefully examined the charge, and when it is considered with reference to the facts, we believe it to be without error.
Does the evidence support the verdict? We think not. When the statement of facts is examined, the conclusion is inevitable that old man Scott was mistaken when he states that defendant struck him with the gun. That Thornburn, and not defendant, struck him with the gun can not be questioned. The mistake is quite reasonable. The old man was over 71 years old, was in very bad health, and had been for some time. He had never seen either of the parties before the difficulty. That Thornburn struck him, if struck at all, is conclusively proved. It is also equally evident—absolutely true, if evidence can establish any fact—that when Thornburn struck old man Scott, defendant Lyons was engaged in preventing Clarence Scott from using his gun. Under such a state of case, in the absence of any agreement or conspiracy to kill old man Scott, could Lyons be held responsible for the intent to kill and murder, if Thornburn entertained such intent? He certainly could not. Was there an agreement to kill Mr. Scott? There was not. The evidence not only fails to show such agreement, but most clearly shows the contrary. Did Thornburn intend to kill Mr. Scott? This is doubtful. But concede that he did, did Lyons know of the intent? There is not the slightest circumstance tending to show such knowledge. This was a sudden affray, harmless in its inception, and so rapid in its consummation as to preclude all possibility that it was preconcerted.
If two or more, persons agree to commit an offense, and from the nature of such offense and the manner of executing such conspiracy it is reasonably probable that death would result to the victim, and death does result, though not intended, still all would be responsible for the homicide; but death not resulting, the parties would be held responsible for the actual results—in this case for aggravated assault and battery. This proposition assumes a conspiracy to commit an offense. If there be no conspiracy or agreement, the above conclusion would not follow. Bach would be held responsible for his own acts. But though there was no conspiracy to commit an offense, still if one commits an offense, and the accused was present and knew the intention of the other, and aids by acts or encourages by words or gestures the person
In this case a serious bodily injury was inflicted upon Scott. If defendant. knew that Thornburn was engaged in the infliction of this injury, and aided and encouraged him in the commission thereof, he would be responsible for the natural and reasonable consequences, and if death had ensued would be guilty of the homicide; but if Thorn-burn intended to kill Scott, but this intention was not known to defendant, death not resulting, but serious bodily injury, the latter would be responsible, not for the secret intention of Thornburn, but for the reasonable consequences, viz., the infliction of serious bodily injury, and hence his crime would be aggravated assault and battery.
Does the proof show with reasonable certainty that defendant knew that Thornburn intended to kill Scott? It does not. Does it show that he saw Thornburn when he struck Scott with the gun? This is doubtful. Conceding that he did see Thornburn strike, or in the act of striking, is there any evidence that he aided or encouraged him to strike Scott with the gun? There is none, for the evidence renders it certain that at the time defendant was struggling with Clarence Scott to prevent him from using a gun. We agree with counsel for appellant, that the evidence is insufficient to sustain the verdict for assault with intent to murder.
Reversed and remanded.
Judges all present and concurring.
