McFarlin v. State

41 Tex. 23 | Tex. | 1874

Gould, Associate Justice.

The appellant was indicted for an aggravated assault and battery on one McElroy, and, on the testimony of the latter, was convicted. The evidence showed that the accused inflicted a serious wound on McElroy, by striking him with the small blade of his knife; but the testimony of McElroy and of the sons of defendant was in conflict, as to whether he was not himself attempting to strike the accused with a good-sized walking-stick at the time the knife was used. In this state of the evidence, the court instructed the jury, amongst other things, as follows:

“ If you believe that defendant stabbed McElroy without McElroy striking him with the stick, you will find him guilty of an aggravated assault.” As there was no evidence whatever that McElroy actually struck defendant, this charge left the jury no alternative but to convict. The bill of exceptions and assignment of errors are sufficient to present this part of the charge for revision.

As the case will be remanded for this error in the charge, it is deemed necessary to notice but one of the various rulings of the court in excluding testimony, also assigned as error. The prosecutor, McElroy, had testified that he went into defendant’s field, where defendant was at work, and where the difficulty occurred, with no expectation of a difficulty, and no ill-feeling towards him. On cross-examination, defendant’s counsel proposed to ask him “If, on the morning of and before the difficulty, he did not say, in the presence of his family, that he was going to see McElroy, and if he did not get back by 11 o’clock, they might know he had blood; ” which question was excluded by the court. We think the question was proper. It was competent to show, if such were the fact, that the witness bad made statements inconsistent with his evidence on the trial; and, in view of the conflict of testimony, it was important to defendant to make such proof, if he could. It was also proper to ask the witness himself in regard to such statements, to give him opportunity to admit and explain them. (1 Green!., § 462, and note.)

The objection to the indictment, that it does not allege the assault and battery to have been made with intent to injure, is not well taken. (State v. Allen, 30 Tex., 59.)

' The judgment is reversed, and the cause remanded.

Reversed and remanded.