104 S.W. 584 | Ct. App. Ind. Terr. | 1907
Defendant was indicted for an assault with intent to kill, tried to a jury, found guilty, and sentenced to the penitentiary for one year and one day, and the case now stands in this court on appeal.
The evidence in this case shows, in substance: That on July 4, 1901, Hugh Dalrymple, the injured party, was standing in front of a store building in the town of Coalgate, reading a poster, when defendant approached him saying: “Why did you attack me the other night as you did?” Dalrymple replied: “I did not attack you.” When defendant replied: “They tell me you are the man.” That, after some 'words passed, Dalrymple turned to leave the place, when defendant caught him by the arm and shoulder, saying: “You are not
Appellant assigns six errors; the first being that the appellant was not arraigned as required by law. The record discloses that defendant appeared in open court on October 3, 1904, in person and by attorney, and waived formal arraignment and pleaded not guilty. This the statute (Mansf. Dig.
The second assignment is that the court committed error in excluding from the jury the offer of appellant to prove that two or three days before the difficulty prosecutor and other men had made an unprovoked night attack upon appellant with weapons. We do not think that, if this evidence had been permitted to be introduced, it would at all have justified appellant in attacking and cutting a man whom the evidence shQws to have been standing in an- inoffensive manner. The jury heard the testimony in the case, and heard defendant's testimony and claim that.the prosecutor was about to attack •him with a rock at the time he did the cutting, and passed upon the relative value of the testimony of the two men, and we do not think that the action of the court in refusing to admit this testimony was error.
The third assignment of error is a long attack upon the instructions of the court. There was no exception taken to the court’s instructions, nor did the court refuse any instructions offered by appellant, and consequently we cannot, consider that assignment of error.
The fourth assignment is that the court erred in failing to instruct the jury on the question of aggravated assault; and the fifth assignment is'that the court erred in failing to instruct the jury on the question of simple assault. Instructions upon these questions were not requested. It was for the court to determine whether under the evidence included within the offense charged by the indictment were aggravated assault and simple assault-, and failure to so instruct when not requested by appellant is not error.
The sixth assignment of error is that the court erred in overruling appellant's motion for new trial. The only additional ground set up in the motion for a new trial to the matters complained of in the assignment of errors is that the
Upon the whole record in the case, the conviction of defendant was justified by the evidence, and this court, finding no error in the record, affirms the decision of the court below.