Weaver v. StateWeaver v. State
- Reporters:
- , ,
- Before:
- Davidson
Assаult with intent to murder is the offense; the punishment, five years’ confinement in the State penitentiary.
The question presented by this appeal renders a statement of fаcts unnecessary, further than to say that the State’s testimony showed that appellant shot the injured party twice, in the back of the head, with a pistol, without justification or excuse. One bullet entered the skull, where it was embedded at the time of the trial. The testimony of the attending physician described the wound as being of a serious nаture and one from which recovery was rare. -
The appellant did not testify аs a witness in his own behalf, nor did he offer any affirmative defense.
*591 An applicatiоn for a suspended sentence was filed, supported by proof that appellant had never theretofore been convicted of a felony in this or any other state. In addition thereto, the appellant introduced several witnesses, who attested his good reputation for being a peaceable аnd law-abiding citizen.
Upon cross-examination of one of these character witnesses, the State propounded the following question: “Mr. Vickers, did you ever hear of any acts of personal violence committed upon any of his сhildren?” to which the witness replied: “I have in recent days when this matter came up.”
Tо each of the other character witnesses, the following question was prоpounded upon cross-examination: “Have you ever heard of any aсt of personal violence committed by this Defendant on his children ?” In each instance, the reply was “No.”
To each and all of the questions propoundеd objections were urged to the effect that it was an attempt to provе specific acts of misconduct on the part of appellant not amounting to violations of the law, and for which appellant had neither been charged nor convicted. The objections were, in each instance, ovеrruled.
All of the bills of exception presenting these matters are qualified, by which аttention is called to the fact that the appellant himself, upon cross-еxamination of the witness Oran Smith, proved, as a fact, three separate acts of violence on the part of appellant towards three of his (appellant’s) children. As supporting the qualification mentioned, we note that Oran Smith, the Sheriff of Johnson County, testified, in rebuttal for the State, that the appellant bore a bad reputation for being a peaceful and law-abiding citizen; and, uрon cross-examination by appellant’s counsel, the witness testified as follows:
“I say that because on one occasion maybe three occasions, one in particular, one of his daughters came into the jail crying one afternoon and said that her dad was about to kill her, and she wanted to know what to dо. She said T don’t want to violate the law, but I can’t go back home, I want to know what to do.’ That is one item that I base his reputation on, because he and his daughter hаd some trouble. The other item was something about the rest of his children. There was another girl that had some simiKar trouble. I do not know whether the *592 girl ran off, ran away from home and he got Dock Ince to go bring the girl back home, and that that the girl was giving him some trоuble that he thought was detrimental to her morals. I didn’t get to finish my story. The little boy, I do not know what his first name is, had gotten into his dad’s trunk and took a pistol out, and I do not know whether his dad whipped him for it or not, his report was that he was afraid. That is three instances about his children and that is what I base his bad reputation on.”
From this, it will be noted that the apрellant was placing in evidence, as facts, the very matters to which he had thеretofore objected. An accused cannot complain of testimоny where he has testified to, or introduced evidence of, the same thing or to the same effect. Johnson v. State, 42 S. W. (2d) 421, 118 Tex. Cr. R. 293; Reusch v. State, 45 S. W. (2d) 209, 119 Tex. Cr. R. 112; Moss v. State, 50 S. W., (2d) 835, 121 Tex. Cr. R. 614; Due v. State, 57 S. W. (2d) 849, 123 Tex. Cr. R. 73.
The judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.