*1 correctly provides The sentence confined penitentiary in the term indeterminate of not less than years years. pоrtion nor more than 99 That of the sentence punishment adjudged which refers is reformed so as to punishment judgment read that such was аssessed in at years. reformed, appellant’s and sentence thus rehearing second motion for and the state’s motion аre over- ruled.
W. N. McFarlane v. State. 26,715. January 20, No. 1954. Rehearing Denied March 1954. Appellant’s Rehearing Second Motion for Dеnied (Without Opinion) April 14, 1954. Written McDonald, Falls, C. C. Wayne Wagonseller, Wichita W.
Bowie, appellant.
Wesley Dice, Attorney, Austin, State’s for the state. MORRISON, assault; punishment, one aggravated *2 offense is The aggrava- grounds of $1,000.00. The jail fine of and a
month in male appellant an adult allegеd the that were case of this female. The former injured party was a the 194, Rep. 254 S. W. 158 Tex. Cr. be found on will question will had existed betweеn ill Prior to the each next to places were participants, whose business the her while Bryan assaulted testified other. Dоrris office, drug carried her over to property, she her was on beating. severe a and there administered the Appellant testified and his witnesses ain bellicose place of her own volition business came into his off an effort to ward he hit her three times mood and that kicking. the blows of her fists her the jury the resolved issue of the
pellant, sufficient to and we find the evidence viction. by appellant’s raised the contentions
We shall not discuss attorney in eminent his brief. following the picture
A of the made on Appellant contends altercation was introduced in evidence. graphically inflammatory. agree picture рicture We injuries, not render her but that does extent of 329, State, 156 Tex. Cr. inadmissible. Cantrell 387, said, photographs “If illustrate we serve to S. W. inflаmmatory.” issue, they disputed immaterial are also it is under was drawn true that this case While jury 1147, in such a case the Article still Section 5 of injuries in order extent of inflicted is entitled to know punishment, and the assess the juries reason case. It could not with an issue in the becomes brought prosecution under Section be said that because this testify permitted nature be as to the 5 the witnesses would nоt accurate, injuries picture, if would inflicted. description vividly witnesses. than of the this evidence more case, verdict, rejеcted in this its legitimate plea receive all of self-defense and were entitled to had inflicted he evidence naturе her. relies, among cases, other Avirett v. Rep. 627, and Heath v.
128 Tex. Cr. S. W. 2d con 210 W. 2d where this court S. body pictures demned the evidencе of introduction into degrees apparent. deceased. A distinction are no There death, helpful pictures therеfore would Quite assessing punishment. the con trary is true in assault cases. contends the not admissible proper predicate for its admission had not laid in testify. who took did not quote treatise, from the Presentation We learned Evidence, by Pope, Law thе Honorable 31 Texas Jack Scientific
Review, page 794, as follows: simplest Perhaps predicate required “. . . for phоtographs. “ photograph representation ‘Is this a fair and accurate (the subject ques- inquiry) as existed it on ?’ simple questiоn
“That predicate is the modest jurisdictions ordinary object. photograph most a still question presupposes, however, is familiar witness Generally speaking, with the scene. not need produced, any person and familiar with scene will suf- fice.” testified:
“Q.....Does you picture truly correctly represent and you appeared morning? Yes, you as A. as looked on that sir, exсept for the in a black and white Yes,
Surely no one else was she. more familiar with the scene than objected to the court’s it failed to pearance from a lesser attack. Boykin 148 Tex. 184 S. W. 2d
we said:
“It will be noted that Article has reference to attаck.’ and violent ‘unlawful statutory arise, and, within must come article is ferred the statute. holding this Court the consistent “It has been attack; thаt actual reference an has referred to attack there applicable to, nor is when the have reference does jured party make, act an attack some is about to preparatory attack.”
Finding error, of the triаl court no reversible affirmed. rehearing. ON motion WOODLEY, testimony insists that there is the record original pic- opinion that statement in оur “graphically ture the extent of her injuries.” testified that was made
morning immediately following assault, newspaper photographer, Greenwood, it was taken Mr. Arch then testified: the courtroom. She picture truly represent you “Q. Does that you you morning? sir, аnd as looked on that A. *4 except for the a in black and white charge, the court’s Under one the issues against threatening wаs that of self-defense an attack not bodily injury charge serious or death. Under the the court right appellant’s restricted оf defense an instruc- greater tion to the effect force than to pellant being repel used to could be to the attack upon any. him, if made additional reason the For this important flicted to the case. state’s admitting convinced We rеmain court did not err in picture in evidence. again urges requested No. 3 should given. have sought charge appellant requеsted
By have words, or the effect that if from the acts and instructed both, prosecutrix there was created in mind of danger aрprehension bodily injury appellant a reasonable or reasonably appeared upon him, attack make an unlawful he had about to was right danger. danger apparent from to defend himself such against a milder at- Art. P.C. authorizes made, оnly actually a violent attack tack when prepara- the attacker is about to attack or some act when tory Tex. v. 210 S.W. thereto. Smith 827; Brown S.W. fully court force The trial submitted to use against force, and to defend himself the claimed un- prosecutrix, lawful attack him de- appearance extend such clined to giving apprehension that an attack not rise or fеar bodily injury about of death or serious to be made. Remaining convinced that dis- original submission, appellant’s posed of on motion for rehear- ing is overruled.