95 S.W. 112 | Tex. Crim. App. | 1906
Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25.
The facts briefly stated show that ill will existed between prosecutor and appellant who were near neighbors. On the occasion in question they met in the road, each driving a two-horse wagon. Neither gave the road. The result was they came together, one being directly in front of the other. According to the State's testimony appellant asked prosecutor, "What do you mean?" And prosecutor said, "What do you mean?" Prosecutor told appellant he was loaded, whereupon appellant said it was a good place to settle their troubles — told prosecutor he had called him a liar, thief and rogue, and he had to take it back. This prosecutor declined to do. Both parties got out of their wagons. *144 Defendant reached into his wagon, took out a double-barrel shotgun, unbreached and loaded it, and then said, "You son-of-a-bitch, if you don't take back what you said, I will kill you," and then raised his gun to his shoulder, pointed it towards prosecutor, who ran off into his pasture seventy-five or one hundred yards from the wagon. Appellant testified as did prosecutor up to the time when prosecutor told him his wagon was loaded, then appellant said, he could not see in his wagon — could not tell whether it was loaded or not. He thereupon told prosecutor he wanted him to take back the way he had abused him once before. Prosecutor said he would not do it; that appellant did steal his cane. Appellant then got out of his wagon, began unhitching his team, saying he could camp there as long as prosecutor could. Prosecutor got out, and started toward appellant, and appellant pulled his gun on him, and cocked both barrels. Prosecutor then ran; that he could have shot prosecutor, having a clear view of him, but did not. This is a sufficient statement of the case to discuss the propositions.
Appellant complains of the following portion of the court's charge: "The injury intended may be bodily pain or any disagreeable emotion of the mind, but when injury is shown the intent is presumed, and it then rests with the defendant to show the accident or innocent intention, or that it was done in his own necessary self-defense; and further that, where no injury is shown, intent to injure must be proved as any other fact, but it may be shown by circumstances; and in this connection you should consider all the facts and circumstances before you in evidence."
In some cases it has been held that although there is no evidence of actual physical violence, it is not error to charge, article 588, Penal Code, yet all of these cases seem to be assaults of an indecent character by an adult male upon a female. See Young v. State, 31 Tex.Crim. Rep.; Hill v. State,
Nor do we believe the court was authorized to admit against appellant evidence of custom, that where parties driving wagons met in the road each would give half of the road, and where one wagon was loaded and the other not loaded, that the loaded wagon should have the right of way. The facts further show that appellant stated at the time that he could not see that the other man had a loaded wagon. So the evidence of custom, even if in some cases it might have a bearing, had none in this case.
For the errors discussed the judgment is reversed and the cause remanded.
Reversed and remanded.
Brooks, Judge, absent.