author: HARPER, J.

text:
    TURNER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Criminal Law (§ 522)—Evidence—Con-fessions—Voluntary Character.
    Where prosecutrix testified to facts showing a rape by defendant, detailing all the circumstances, and defendant, before _ the state had attempted to show any confession and to support his contention that the case was a frame-up, and that the father of prosecutrix was trying to drive him from his land and out of the country, on cross-examination brought out that prosecutrix, in the presence of her father and mother, had accused him, and that her father then attacked and beat him until he confessed, testimony of the father and mother as to what was said and done at that time, objected to on the ground that defendant was under duress and did not voluntarily confess, was properly admitted.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1189-1195; Dec. Dig. § 522.]
    2. Criminal Law (§ 351)—Evidence—State-ments on Arrest.
    Where defendant, on an accusation of rape, fled the county, evidence of his giving of an assumed name to a police officer in plain clothes, who had not arrested him nor informed him that he was an officer, but who was determined not .to let him get away, and his statements as to where and for whom he worked, were admissible.
    [Ed Note.—For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.]

      3. Criminal Raw (§ 378) — Evidence—Character of Accused.
    Where defendant prayed a suspension of sentence and introduced evidence of his general reputation, there was no error in permitting the state to inquire into his habits and mode of life.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 842; Dec. Dig. § 378.]
    4. Rape (§ 6) — Elements of Offense — Eobce.
    Force is not an element of the offense of rape upon a girl under 16 years of age, since she is incapable of consent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 6; Dec. Disr. § 6.]
    6. Criminal Law (§ 789) — Instructions— Weight of Evidence — Reasonable Doubt.
    In a prosecution for rape, a charge submitting that offense and requiring the jury to believe the facts constituting it beyond a reasonable doubt before they could convict, and that, in case an acquittal of that offense, the question whether defendant was guilty of an assault with intent to rape should be considered, and requiring a finding of 'facts constituting that offense beyond a reasonable doubt, and submitting the law of aggravated assault as applicable to the evidence with the application of the rule of reasonable doubt to that offense, together with the usual charge on presumption of innocence and reasonable doubt, in .view of a conviction of the offense without mitigating circumstances, was not objectionable in not applying the rule of reasonable doubt to each specific offense mentioned in the charge.
    [Ed. Note-. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851,1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Frank Turner was convicted of rape, and lie appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r ladeares

   HARPER, J.

Appellant was prosecuted and -convicted of rape, and bis punishment assessed at five years’ confinement in the penitentiary.

Gusta Poe, a ten-year old girl, testified to facts showing that she had been raped by appellant, detailing all the circumstances. On cross-examination the appellant sought to show by this witness that her father was trying to make appellant leave the country, and all through the record an effort is made by appellant to show that the prosecution is a frame-up, instigated by the girl’s father to get appellant off his land and out of the country. The state at this time had not offered nor attempted to show that appellant had made any confession, but on cross-examination, of this witness the defendant elicited the following facts: That she had told her father about the matter, when her father went in the direction of where appellant was staying, and then, to use her own language: “The next time I saw Papa was late that evening, and Mr. Turner was with Papa at that time. Papa then told me to tell it right before Mr. Turner and Mamma, and I did. My papa and mamma and Mr. Turner and I were all there. I told them just what I have told here. Mr. Turner looked pretty bad that night. He was pretty badly beaten úp. 'My papa hit him while I was there near him. Papa would just hit him and say, ‘Now, don’t you see?’ Papa did that when I told him what I did there after Mr. Turner was present. Mr. Turner was bleeding a good deal at tha,t time. Bleeding in the face and blood ail over his face and eyes. My papa did not tell me that he was beating the old man up, but I saw Papa hit him. Mir. Turner never said anything, only Papa asked him if it was the truth, and Mr. Turner would not say anything, and Mamma says, ‘Say yes,’ and he said ‘Yes.’ Papa was ‘laying’ it onto him then. He was hitting him about that time. Turner begged Mamma to get Papa to quit beating him. Miy mamma did not try to get Papa to quit beating the old man. Mr. Turner said that Papa was going to kill him: Mamma did not try to get Papa to quit beating him up. Papa said he was going to kill the old man, and Mamma said she did not care if he did, and Papa picked up a stick and commenced beating him and beat him a good while before the old man acknowledged to doing what I said he did. Mamma then took the stick away from Papa and throwed it away. Papa beat him a good while before he owned up to it. He would not say ‘Yes’ at first. Turner did not say that he would confess to anything if Papa would not kill him. He said Papa was going to kill him, and that is all he said then. I then left my papa there in the road. Mamma and I went on, and Mr. Turner and Papa went back towards the bridge. Papa was not leading Turner and pushing him along as they went down towards the bridge.” This was the first witness placed on the stand, and none of this testimony was offered by the state, but elicited by defendant on cross-examination, and defendant was the one who injected this matter into the case. From the record it would appear he deliberately did so for the purpose of supporting his contention that the father of the girl was trying to force him off the land and make him leave the country, and that the charge of rape had been instigated by Gusta Poe’s father for the purpose of giving him an opportunity of beating him up and driving him out of the country, and the case was tried in fact on that issue as made by defendant. Under such circumstances we do not think there was any error in permitting Mr. and Mrs. Poe to testify in regard to what was said and done on that occasion.

Appellant objected to Mr. and Mrs. Poe and Edgar Holt testifying that appellant on that occasion admitted he committed the rape on the little girl, on the ground that he was under duress, and it was not voluntarily made. It is not contended he was under arrest, but that it was iorced from bim, and the confession was made to save his life. There would be strength and force in appellant’s contention if he had not been the first, in the cross-examination of Gusta Poe, to inject this matter into the case, but, when he had elicited the matter from her to build a theory on, that the charge was a frame-up of the'father to give him an opportunity to beat him and drive him o.ut of the country, then the transaction just as it occurred might be detailed by the other witnesses.

Appellant escaped that night, and it is shown he fled the county and was arrested in Waco, and when arrested he gave an assumed name. George Weathers, of the police force, testified: “I went to search for him (meaning defendant). I found the old man in the Cotton Belt bar on the corner of Third and Mary streets. I had a description of the old man, and I walked in by the bar and saw this man, and I called him out by the side of the house and asked him where he lived, and he said at Waco, and I asked him how long he had been living in Waco, and he said 25 years; and I says, ‘What part of Waco?’ and he said, ‘Just anywhere;’ and I says, ‘What do you do for a living?’ and he says, T work;’ and I says, “Who do you work for?’ and he said, T work out in the edge of the country and town;’ and I says, ‘What is the man’s name that you worked for?’ and he studied a little while and says, T can’t think of his name.’ ” The witness then said he had not yet arrested the defendant, but testified further as follows: “At the time I took him (meaning the defendant) out there I would not have let the defendant get away, if I could have helped it. That is what I had him for. And he says, ‘My name is not Turner.’ He had previously told me his name was John or Will Johnson, or something like that.” In approving the bill the court says: “I refer to Weather’s testimony in the statement of facts. He swore that, at the time he had the conversation with the defendant in question, he (Weathers) had on plain clothes and that he had not arrested the defendant and had not informed him that he was an officer.” As thus qualified there was no error in admitting the testimony under all of our decisions. Elsworth v. State, 54 Tex. Cr. R. 40, 111 S. W. 963; Grant v. State, 56 Tex. Cr. R. 415, 120 S. W. 481; Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 593; Martin v. State, 57 Tex. Cr. R. 264, 122 S. W. 558; and cases cited in section 221, Branch’s Crim. Law.

Appellant interposed a plea, praying for a suspension of sentence, and introduced evidence of his general reputation. Under such circumstances there was no error in permitting the state on this issue to inquire into his habits and mode of life, and the bills on this question present no error.

The rape in this instance was alleged te have been committed on a girl under 15 years: therefore there was no error in refusing the special charge requested presenting the issue that appellant could not be convicted unless “he used force upon her.” Force is not an issue in this character of ease; the girl being incapable of giving consent either to rape or an assault to rape. In an advance sheet of M(r. Branch’s new work, the Penal Gode of Texas, c. 8, we find the following rule correctly stated: “Carnal knowledge of a female under the age of consent and not the wife of the person having carnal knowledge of her is rape, no matter what the circumstances, and the question of consent or whether the carnal knowledge was had by force, threats, or fraud is wholly immaterial. Anschicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; Whitehead v. State, 61 Tex. Cr. R. 558, 137 S. W. 356; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476; Hightower v. State, 143 S. W. 1168; Vandenberg v. State, 148 S. W. 315. If the female is alleged to have been under the age of consent at the time defendant had carnal knowledge of her, an unnecessary allegation that defendant ‘did ravish,’ or that the carnal knowledge was ‘by force,’ or ‘by threats,’ or ‘by fraud,’ may be rejected as surplusage. Davis v. State, 42 Tex. 226; O’Rourke v. State, 8 Tex. App. 70; Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814; Buchanan v. State, 41 Tex. Cr. R. 128, 52 S. W. 769; Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375; Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94 [123 Am. St. Rep. 844]; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476.”

The only other exception to the charge is that the court erred “in not applying the rule of reasonable doubt to each specific offense mentioned in the charge. The court first submitted the offense of rape, and instructed the jury they must believe beyond a reasonable doubt the facts constituting this offense before they would be authorized to convict, and then following this paragraph instructed the jury: “If you should have a reasonable doubt of the defendant’s guilt of the offense of rape, you will acquit of said charge, and then consider further whether or not he is guilty of the offense of an assault with intent to rape”—and then instructs the jury fully on the law of assault to rape, and requires them to find such facts beyond a reasonable doubt before they would be authorized to convict. He then instructs the jury the law of aggravated assault as applicable to the evidence in this case, and applies the doctrine of reasonable doubt to that offense. In addition to all this, he then gave the usual and customary charge on presumption of innocence and reasonable doubt. Under such circumstances this complaint is without merit. The jury under these instructions find the appellant guilty of rape, and recommend that the punishment be not suspended, evidently finding the offense committed under circumstances showing no mitigation.

To our minds, the only serious question in the case is the question of admitting the statement made by defendant while he was being whipped by the outraged girl’s father. Had not the defendant first made this proof and injected the issue in the case, a very serious, if not fatal, question would be raised. However, having himself made this proof by the little girl and injected the issue in the case, and then the other witnesses allowed to detail their version, on the issue of whether of not Mr. Poe was using this charge as grounds for driving appellant from off his land and out of the country on account of his dislike for appellant, we have concluded that the court did not err in admitting the testimony, and the circumstances under which the statements were made by appellant would go to its weight and not its admissibility. If the appellant had requested a charge that if appellant had made the statements under duress (that is, to save himself from further castigation by an irate parent), then they would -not consider same as any evidence of appellant’s guilt of the crime of rape; or, had he complained of the charge of the court for not so instructing the jury, we would feel inclined to sustain his contention. But inasmuch as he did neither of these things, and first elicited evidence from the girl that her father had beaten and whipped appellant on that occasion, and that when appellant appealed to Mrs. IPoe to stop her husband, and, in answer to her remark in reply, he admitted his guilt, when Mrs. Poe caused her husband to cease, and brought this whipping into the case to build a defense that Poe was trying to run him off the land, which effort he continued throughout the case by the introduction of other and independent testimony, the court’s action in the premises presents no error.

The judgment is affirmed.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    SHERLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Witnesses (§ 374) — Intebest ob Bias of Witness.
    In a prosecution for the illegal selling of liquor, where the prosecuting witness admitted having been previously indicted for assaulting defendant, it was error to refuse to permit defendant to show that the cause of the assault was that the witness purchased a chattel mortgage on defendant’s property and tried to enforce it before it was due, etc., since it was germane to and grew out of and was part of the assault, and tended to intensify the bias of the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    2. Witnesses (§ 374) — Intebest ob Bias oe Witness.
    In a prosecution for illegally selling liquor, the court properly refused to permit defendant to testify that he had previously done some work for the prosecuting witness, and that he had paid him partly in money and partly in whisky, and that this was a motive for the prosecution against him, in the absence of any evidence tending to show that the prosecuting witness had any reason to believe that defendant was going to prosecute him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    Appeal from Madison County Court;' J. M. Brownlee, Special Judge.
    Jim Sherley was convicted of illegally selling liquor, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For otter oases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of selling .intoxicating liquor in violation of the local option law to Jim Lagravier.

The prosecuting witness testifies that he got whisky from the defendant on or about the 1st of March, 1913. He testifies he was in his pasture and requested defendant to get him some whisky. Defendant said he could obtain it. The witness gave appellant the money for two quarts, and appellant left. That evening witness went by appellant’s house and got a bottle of whisky. On cross-examination he said he had had trouble with defendant, in which he and others had been indicted at George, Tex., for making an assault on defendant. The defendant works some of the witness’ land. He went by the house after the whisky and only got one quart; did not know where defendant got it. He did not get two quarts, but only one. Appellant testified that he never sold prosecuting witness any whisky in his life; that he lives on his place, and works some of his land, and other land near by owned by another party. He says: “If I ever in my life let Mr. Lagravier have any whisky I hope God will strike me dead this minute.” He says: “I never let any one in my life have any whisky.” He further testified that, before this indictment was found, prosecuting witness and others came to his house armed and beat him up with six-shooters. “I have the scars on my head now. They were indicted at George for making an assault on me.” This is practically all the testimony in the case. '

While Lagravier was testifying, defendant asked him, on cross-examination, if he and others had not been “indicted” in the justice court at George, Madison county, before the filing of the indictment in this case against defendant for making an assault on defendant. The witness answered, “Tes.” He then proposed to prove by the witness that he (the witness) had a mortgage on defendant’s property and tried to collect it before it was due, and that if he (witness) did not pay John Heath an indebtedness that the defendant owed Heath, and for that reason obtain a mortgage on the property of appellant, and if he did not go to the defendant long before this mortgage was due and before this indictment was filed and tell him that Heath had the officers after his property, and that he (witness) would take possession of it and keep it and not let Heath have it, and that if defendant did not come and get his property, and that that was the cause of witness and othdrs beating him with their six-shooters, and for which their arrest occurred at George. This was offered to show the ill feeling and animosity witness had towards defendant at the time he went before the grand jury and indicted appellant. The court sustained all of these objections by the state, and excluded the testimony, and qualifies the bill with this statement: “The witness had already testified on cross-examination that witness and others were indicted for whipping defendant.”

Another bill shows while defendant was testifying he proposed to prove by himself the same facts; that is, in March or February prosecuting witness told defendant that Heath was after the property with an officer, and that he (prosecuting witness) took possession of the property, telling defendant that he was keeping it to keep John Heath from taking it; that the mortgage was not due until the following October, 1913; that prosecuting witness kept the property for several days, and that he (defendant) went to John Heath to inquire about the matter, and Heath told him it was not true; that he (Heath) did not have any mortgage; that defendant had paid Heath in full; that defendant went back to the home of prosecuting witness and got his property, consisting of two horses and a mule; and that, as soon as prosecuting witness came home and ascertained that the property had been taken by the defendant, the prosecuting witness' and others came to defendant’s house armed and beat him up with six-shooters, and that a complaint was filed in the justice court against prosecuting witness and others for making such assault on defendant, and after all these transactions prosecuting witness went before the grand jury and procured this indictment. This was offered for the same reason that the other testimony was offered, but excluded by the court on objection of the state. The court explains this by stating: “The court offered to permit the defendant to show, if he could, that the prosecuting witness, Jim Lagravier, had had a racket with him and had with others come to defendant, armed, and beat him up with six-shooters, and that a complaint was filed in the justice court against said Lagravier and others for making said assault on the defendant.” We are of opinion that this testimony should have gone before the jury. It tended to show the ill feelings, the motive, and bias of the prosecuting witness against the defendant. The defendant was a negro and prosecuting witness a white man. Anything that tends to show ill feelings, bias, and motive of a witness is competent evidence, and while he was permitted to prove that prosecuting witness and others beat him with pistols, and that they were arrested for it, -yet the other matters were germane and grew out and were part of it, and intensified, or tended to do so, the reason for the ill will, motive, and bias for the prosecution of this case. Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1181. This is in line also with the recent decision of Turner v. State, 163 S. W. 705, decided at the present term.

Another bill also shows that defendant offered to testify that he and others cleared some land for the prosecuting witness in the fall of 1912, and that the prosecuting witness paid for the work partly in cash and partly in whisky; and it was claimed by defendant this was material, because it showed motive on the part of the witness to have this appellant prosecuted in order to avoid having a ease against him for selling whisky brought before the court. The trouble with the bill, however, is that it fails to show- that the prosecuting witness had any reason to believe the defendant was going to prosecute him, or that he would be a witness against him in that particular matter. If this could have been shown or probably shown, then it might have entered into the reasons why prosecuting witness was acting as he did in this prosecution, and would tend to show his bias and ill will and motive. The bill is hardly sufficient, however, to show that as presented. If upon another trial the matter is connected up, the testimony would be admissible.

The judgment is reversed, and the cause is remanded.


text:
    MORRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Criminal Law (§ 254) — Trial—Conclusions of Fact and Law.
    Where a criminal prosecution is tried by the court without a jury, the court is not authorized to file conclusions of fact and law, as in a civil action.
    ' [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. .§§ 537, 538, 543; Dec. Dig. § 254.]
    2. Wísapons (§’13) — Unlawful Carrying op Weapons.
    Where accused was carrying a pistol to his home from the place where it had been repaired, the facts that he accidentally discharged it, and that on his journey home he retraced his steps for a short distance to make a small purchase, will not render him guilty of the offense of unlawfully carrying a pistol.
    [Ed. Note. — For other eases, see Weapons, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.]
    Appeal from Donley County Court; J. G. Killougk, Judge.
    Albert Morris was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.

      E. A. Simpson, of Clarendon, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of the offense of unlawfully carrying a pistol. The case was tried before the court without a jury, and there accompanies the record both a statement of facts and “conclusions of fact and law” filed by the court. The conclusions of fact and law are not authorized to be filed by law in criminal eases, but we have read these conclusions, because they furnish us the basis upon which the court adjudged appellant guilty.

The court finds that appellant was working for the cold storage company, and carried his pistol from his home to the place he was at work to repair it; that he left it and went to a show, and after returning from the show he went to the cold storage plant and got the pistol for the purpose of carrying it to his home; that he started home, but, finding he had no tobacco, he retraced his steps two blocks, got the tobacco, and again started home, and while on the way there, while “monkeying” with the pistol, he accidentally discharged it. The court Adjudged him guilty, on the ground that he retraced his steps two blocks, thus deviating from his journey to that extent, and because he fired the pistol accidentally, as he had no right to be “monkeying” with it.

The slight deviation in retracing his steps two blocks to purchase tobacco, and that it was accidentally discharged in the manner described by the witness, would not constitute the offense of unlawfully carrying a pistol, if he in fact was carrying it from the place where it had been repaired to his home.

Reversed and remanded.


text:
    LASSITER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Sheriffs and Constables (§ 98) — Illegal Levy — Trespass.
    Where the docket of the justice court showed that no judgment was entered against defendant and the writ of execution showed that it was not directed against his property, that the writ recited that there was a judgment against defendant will not warrant a constable in levying upon his property, and, if he does so, he is a trespasser.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 143-157; Dec. Dig. § 98.]
    2. Assault and Battery (§ 69) — Aggravated Assault — Self-Defense.
    Where a constable, proceeding under a writ of execution void as to accused, attempted to levy upon accused’s personal property, and entered upon accused’s land for that purpose, the constable is a trespasser, and, if accused believed that his life was in danger if he attempted to protect his property, he was justified in using all necessary means to prevent the intrusion upon his property, as well as to protect himself.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 99-101; Dee. Dig. § 69.]
    3.Assault and Battery (§ 96) — Criminal Prosecution — Instructions.
    In a prosecution for an aggravated assault on constable who was attempting to attach accused’s property under a writ of execution which was void as to him, the court, in charging upon accused’s right to defend his property, should explain that the writ of execution was void.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    4. Sheriffs and Constables (§ 98) — Illegal Levy.
    Where an officer proceeded under a writ of execution, which was void as to accused, the fact that the officer thought that the writ entitled him to take accused’s property will not increase his rights.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 143-157; Dec. Dig. § 98.]
    5. Assault and Battery (§ 69) — Criminal Prosecution.
    Where a constable, acting under a writ of execution which was void as to accused, wrongfully entered upon accused’s homestead, informing him that he was going to levy upon accused’s mule, and that, if accused did anything, he would get hurt, accused is entitled to arm himself for the protection of himself and his property, and may, if necessary, shoot the constable; and hence, in a prosecution for shooting the constable, the denial of an instruction that the fact that accused armed himself is not to be taken against him is improper.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 99-101; Dec. Dig. § 69.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    R. L. Lassiter was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Mahaffey, Thomas & Hughes, of Texar-kana, for appellant C. E. Lane, Asst Atty. Gen., for the State.

      For other oases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of aggravated assault.

Briefly stated, the record discloses that pri- or to the difficulty there was a civil suit brought in the justice eourt in Bowie county, appellant as attorney representing the defendant. This suit was pending in justice precinct No. 7. Powell was plaintiff, and Charlie Stone defendant. The evidence indicates that the title to some corn and peanut hay was involved in the litigation, which had been seized by some ancillary writ. It seems that about the 18th of March, 1913, S. S. Ott, acting by and through Charlie Stone, his agent, made out, or attempted to do so, a claim bond with affidavit for the purpose of trying the rights to the above-mentioned property. The claim bond was signed by Charlie Stone as agent for S. S. Ott, and Charlie Stone in person, and several others, appellant being one of tbe named signers to the bond. This bond seems never to have been delivered to or approved by the officer who seized the property. Nor was there, so far as the record shows, any trial of the rights of this property. The main suit, however, between Powell and Charlie Stone was tried, appellant appearing for Charlie Stone as his attorney. The following judgment, omitting formal recitals, was entered in the suit: “Wherefore, it is ordered, adjudged, and decreed that claimants take nothing by their claimant bond, and that plaintiff do have and recover of and from defendant and claimants sureties on their claimant bond 72 bushels of corn, 1,000 pounds of peanuts and peanut hay, together with all cost in this behalf expended, and that plaintiff sequestration on said corn and'hay, be and the same is hereby foreclosed, for all of which let execution issue.” This judgment was rendered on April 12th.

On the following 10th of May an execution was issued as follows: “To the Sheriff or Any Constable of Bowie County — Greeting: Whereas, on the 12th day of April, A. D. 1913, J. W. Powell recovered a judgment in the justice’s court, precinct No. 7 of Bowie county, Texas, against Charlie Stone, R. L. Lassiter, S. S. Ott, G. W. Barrett, for the sum of 72 bu. corn, 1,000 lbs. peanut hay, with interest thereon from 12th day of April, 1913, at 6 per cent, per annum, and all costs of suit. Therefore you are hereby commanded that of the goods, chattels, lands and tenements of the said Charlie Stone you cause to be made said sum of- dollars, and interest as aforesaid, together with the sum of twenty-four and 20/ioo dollars costs adjudged against the said Charlie Stone, and also the further costs of executing this writ.” The recitations in this execution show that this judgment which was rendered on the 12th of April carried interest at 6 per cent, per annum. It is unnecessary to notice that this execution directed that 6 per cent, interest on the corn and peanut hay, as also the cost, be collected from Charlie Stone. It did not direct the collection of the 72 'bushels of corn and 1,000 pounds of peanut hay at 6 per cent, interest.

Simington was the constable. He summoned a man named Darnell to go with him to execute the process on appellant’s mule. Appellant lived something like one-half mile from the village of Bassett, and Simington informed appellant that he was going to collect that cost, and, if he didn’t pay it, he was going to levy on one of his mules. He further notified appellant that he didn’t propose to have any trouble about it and he must not give him any trouble; that, if he did, he would hurt him. Darnell testified that Sim-ington said to appellant: “Lassiter, now I don’t want any trouble with you, but I have this execution here to collect that cost. If you want to pay it, it is all right, and, if you don’t, I am going to levy on that mule. If you come out there with your gun, I am going to hurt you.” Appellant replied: “All right, sir.” Defendant, testifying - in this connection, speaking of the conversation that occurred before the parties went to appellant’s house, gives this version of it: Siming-ton, speaking to appellant, says: “I have an execution this morning for that cost in that Powell case.” Appellant replied: “Well, I can’t help that.” Simington said: “You have the money to pay that cost.” Appellant replied : “ ‘Yes; and I am going to keep it.’ ‘Well,’ he said, T am going to levy on something if you don’t pay it.’ I said: ‘Mr. Sim-ington, you know that I am not in your court. You were present when both of the bonds were overruled, and notified me the appeal bond was turned down, and the claimant’s bond was knocked out of court, which put me and my clients out of court — the bond, and the responsibility of it.’ I said: ‘If you have an execution against me, it is void and of no effect.’ I reasoned the matter with him, and he got mad, and he said: ‘God damn you, sir; you are either going to pay that money, or I am going to levy on you.’ I said: T have plenty of land to levy on, and MR Ott has 5,000 acres that you can levy on; levy on the land.’ He said: ‘God damn your land; I am going to take one of your mules out of the plow.’ I said: T don’t think you will do it.’ He said finally: ‘You must be from Missouri?’ I said: T am.’ He said: ‘God damn if I don’t show you.’ I said, ‘All right,’ and we separated then, and I started home; it was about noontime.” The parties, appellant, Simington, and Darnell, all reached appellant’s house about the same time. Appellant further testified that Simington said: “If you come out with your gun, why, I will have to hurt you?” Appellant further testified, as did Darnell, that Simington informed appellant, if he interfered with his levy on the mule, that he would hurt him, or kill him. After reaching appellant’s premises, Darnell stopped at the front gate, or entered. The testimony is in conflict on this matter. Simington went to the lot where the mules were, and appellant went in his house. Appellant ordered Simington to get out. As appellant stepped out of his house with his gun, he says, Simington placed his right hand upon his pistol, and he' fired, as he says, not to kill, but to disable his arm, so that Siming-ton could not shoot. One of the shots struck Simington in the arm, and the other his right shoulder, which disabled him. These were the only shots fired. Darnell denied having a pistol. Appellant thought he was armed. When appellant fired, he told Simington to get out, which order Simington then proceeded to obey. The record is voluminous on the facts, going into many details; but this is, .in substance, the case.

The docket of the justice court shows there was no judgment entered against appellant, and the writ of execution shows that it was not .directed against appellant or his property, hut only against the property of Stone. This would, therefore, so far as appellant is concerned, render Simington a trespasser oh appellant’s property. He had no authority to collect anything from appellant, and could not take any of his property. He therefore had no right upon appellant’s premises. If appellant believed from the movements of the parties at the time that his life was in danger, or his person in danger of serious bodily injury, or that the injured party was going to take his property, he was justified in using all necessary means to prevent the intrusion upon the property, as well as defense of himself. The court charged the jury on self-defense as 'follows:

“The execution introduced in this case as evidence does not confer on W. A. Siming-.ton, the alleged injured party, the right or power to levy on property'of the defendant, and any levy or attempted levy of said execution by Simington on defendant’s property was unlawful. If you believe from the evidence beyond a reasonable doubt that the defendant assaulted W. A.^ Simington, when if from defendant’s standpoint it reasonably appeared to the defendant, or if you believe that by the acts- or the words coupled with the acts of said Simington, that it was said Simington’s purpose and intent to make an unlawful attack on defendant’s property, such as produced in the mind of the defendant, R. L.- Lassiter, a reasonable expectation or fear of death or some serious bodily injury, and you so believe such assault took place while said Simington was in' the act of making such attack, or after some act done by said Simington,.showing to the defendant, from his standpoint, or showing to you an intent on the part of said Simington to make such attack, the defendant would be justified in such assault, and you will find the defendant ‘not guilty.’
“If you believe from, the evidence, beyond a reasonable doubt, that defendant assaulted said Simington, but that at the time said Simington was not making, or about to make, such attack on defendant’s property as produced > such fear or expectation, yet, if you believe said Simington was making, or was about to make, any other unlawful and violent attack upon the property of the defendant besides such as produced such reasonable expectation or fear, or if it reasonably appeared to defendant from his standpoint that by the acts, or words coupled with the acts, of said Simington, that said Simington was making, or was about to make such other unlawful and violent attack, and that the defendant assaulted said Simington while said Simington was in the very act of making such other unlawful and violent attack, then such assault would be justified in law, and you will find the defendant ‘not guilty.’ Yet, to find the assault so justified in repelling this character of attack, if any, on his property, such as did not produce a reasonable expectation or fear of death, or some serious bodily injury, the defendant, R. L. La.ssiter, must have resorted to all other means for the prevention of the injury except retreat, and every other effort in said Lassiter’s power must have been made by said defendant, Lassiter, to repel the aggression before he would be justified in such assault.”

Exception was reserved to the above charges, and the following special instruction requested: “The purported execution which has been read in evidence to you and being the writ which W. A. Simington had, and under which he attempted to seize and levy upon defendant’s property of any kind, and is and was void, and, when said Simington attempted to take and levy upon defendant’s mule under and by virtue of said writ, he was a trespasser upon the property and the rights of defendant, and the defendant had the right under the law to use all reasonable means to prevent said Simington from taking said mule, and, if from the acts, conduct, and words of said Simington at the time it reasonably appeared to the defendant, as viewed from his standpoint, that if he interfered to prevent said taking that he would suffer death or serious bodily harm at the hands of said Simington, then the defendant had the right to shoot said Simington in order to prevent said taking.”

He further asked this instruction: “If W. A. Simington was armed, and was attempting to take the property of the defendant, and it reasonably appeared to the defendant, as viewed from his standpoint at the time, that, if he interfered to prevent said Siming-ton taking said property, he would suffer death or serious bodily harm at the hands of Simington, then the defendant had the right to shoot said Simington to prevent him taking said property, and it would not be necessary that the defendant was in actual danger at the hands of Simington.”

The court’s charge was wrong. It does not state the law and it, to say 'the least of it, is confusing. The court’s charge seems to make the criterion of appellant’s danger that the attack on the property, or the attempt to take the property, was such that it produced reasonable expectation or fear of death on the part of the defendant before he could defend. Appellant’s proposition was that Simington had reached for his pistol to shoot him, and threatened appellant’s life by the demonstrations to get the pistol, and the reaching for it was intended against the person of the defendant and not the mule. Appellant sought to correct this error, and requested an instruction fairly presenting the issue which should have been given. Without going into any discussion of this matter, the court’s charge was error and appellant’s ' charge set forth the correct rule.

The court should further have instructed the jury as to the invalidity, of the exe-eeut5on as against appellant. He was not named in the writ, and therefore it could have no effect as to him, and the assaulted party had no right to undertake to collect anything from appellant under the writ or to take any of his property. The court should hare instructed the jury that this writ was void as to appellant, and that all the acts of Simington in going to appellant’s house to seize his property were illegal and unjustifiable, and that he was a 'trespasser on appellant’s property and at his home. The court in an indirect way did instruct the jury that the execution was unlawful, but he should have gone further and applied the law to the case, and also told the jury that Simington was a trespasser at appellant’s home and had no legal right to be there. Simington, under the facts of this case, occupied the position of a trespasser on appellant’s premises, and the writ of execution did not justify him in anything that he did at appellant’s home.

Appellant further requested, in this connection, this charge, which was refused: “The purported execution which Simington had is and was void. The fact, if it is a fact, that Simington thought the writ valid is immaterial, and would give no greater rights to said Simington under the circumstances.” This should have been given. It was immaterial, so far as appellant’s rights are concerned, what Simington thought. The case was to be tried from appellant’s standpoint, not Simington’s. If Simington had had a valid writ of execution against appellant’s property, quite a different case ■ or question might be presented. But every fact in the case shows that Simington had no right to levy on appellant’s property. The writ did not authorize it.

We are of opinion that the following requested instruction should have been given: “When W. A. Simington attempted to seize and levy upon defendant’s mule, the defendant had the right to arm himself with a shotgun and go to where Sipiington was and to forbid the said Simington taking said mule, and the fact that defendant so armed himself with said shotgun should not be taken as a circumstance against him in this case.” The law seems to be well settled that appellant would have the right, under the circumstances of this case, to arm himself and forbid Simington from interfering with his home and his property. This all occurred at the residence of appellant, where his wife and children were. They testified in the case to having witnessed the matter. Appellant had the right to defend his home, and he had the right to arm himself and go where Simington was and forbid his entry upon his premises or to seize his property, and, if he could not get rid of him otherwise, and it became necessary to do so, he had the right to shoot, even the right to kill. This was a case of apparent danger. It was also a ease of the defense of a man’s home and his property and the' rights involved against a trespasser, who had come and threatened to take the property of appellant without any process of law fbr that purpose, and with the further express purpose that, if he interfered with him, he would hurt or kill him. Simington was armed, and, under the defendant’s theory of the case, reached for his pistol; that he had a pistol is testified to by all the witnesses who testified on that subject. Simington himself testified that he had it. Appellant said he shot, not for the purpose of killing, but to disable Simington’s right arm, to prevent Simington from shooting him. He fired one shot, disabled the arm, and that ended the difficulty, except Simington was ordered off the place and obeyed the order.

For the errors indicated, the judgment is reversed, and the cause is remanded.


author: PRENDERGAST, J.

text:
    ROBEY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Criminal Law (§ 824) — Misdemeanor Trials — Instructions.
    In misdemeanor cases, the defendant must ask correct charges applicable to the facts, otherwise the court is under no obligation to give them or any other charge on the subject.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    2. Assault and Battery (§ 96) — Instruction— Intent to Injure.
    In trial for aggravated assault, a charge that the use of any unlawful violence upon the person of another “with intent to injure him” is an assault and battery, and, if causing serious bodily injury, is an aggravated assault, that, if defendant committed an aggravated assault and battery by striking and wounding complaining witness, thereby inflicting serious bodily injury, he would be guilty of aggravated assault, was Hot objectionable as failing to require a finding that defendant intended to injure complaining witness.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.)
    3. Assault and Battery (§ 91) — Aggravated Assault — Elements op Oppense — Intent to Injure.
    Pen. Code 1911, art. 1008, provides that the use of any unlawful violence upon the person of another with intent to injure him, whatever the means or degree of violence, is an assault and battery, and article 1009 declares that, when an injury is caused by violence, the intent to injure is presumed. Defendant, who was postmaster, and whose feelings toward complaining witness were unkind, claiming that resignation had been accepted, and that he had no right to-be in the post office, ordered him out, and, upon his starting to go out the door at which he usually went out, intercepted him, and forcibly attempted to put him out of another door, complaining witness making no assault, but resisting, so that defendant called another employs, and together threw witness down, forced him against the door, dislocating his shoulder, and finally put him out. Meld, that the circumstances showed defendant’s intent to injure, and that his acts injured the assaulted complaining witness.
    [Ed. Note. — For other cases, see Assault and Battery, Gent. Dig. § 136; Dec. Dig. § 91.

    For other definitions, see Words and Phrases, vol. 1, pp. 539, 540; vol. 8, p. 7582.]
    4. Assault and Battery (§ 54) — Aggravated Assault — Serious Injury.
    Under the assault and battery statute, requiring the injury to be a serious one to constitute aggravated assault, a dislocation of complaining witness’ shoulder inflicted by defendant while forcibly putting him out of a door in the post office, which hurt a great deal, required a sling for several weeks, and continued to hurt at trial six months later, which had been put in place while complainant was under anesthetics, and which, while not necessarily permanent, would- expose the joint to greater chance of a subsequent dislocation, was a serious injury.
    [Ed. Note. — For other cases, see Assault and Battery, Gent. Dig. §§ 75-78; Dec. Dig. § 54.]
    5. Assault and Battery (§ 84) — Triai>-Ev-idence.
    Upon defendant’s trial for aggravated assault, where he was permitted to testify that he had no intent to injure complaining witness, there was no error in refusing to permit the other party engaged in the assault to testify that he did not intend to injure.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 132; Dec. Dig. § 84.]
    6. Criminal Law (§ 398) — Documentary Evidence-Admission oe Copy.
    In prosecution for aggravated assault, where the fact of complaining witness’ resignation from a post office position was in issue, and he himself testified, without objection, that he had sent his resignation to Washington at a certain date, a carbon copy of such resignation was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 398.]
    On Motion for Rehearing.
    7. Assault and Battery (§ 96) — Aggravated Assault — Instructions — Defendant’s Theory of ti-ie Case.
    In a prosecution for aggravated assault, where defendant claimed that complaining witness had resigned as a post office employs, and had no right to enter or be in that part of the post office from which the public was excluded, and that he had employed another in his stead, the defendant’s theory that, if witness did not have the right to be in the private part of the post office without his consent, he could use sufficient force to prevent him, and if, acting in a bona fide attempt to prevent him from going through the post office, he committed an assault and battery without more force than was necessary, he should be acquitted, should have been submitted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    8. Assault and Battery (§ 64) — Aggravated Assault — Justification.
    Where defendant, a postmaster, with another employé, used more force than was necessary to prevent complaining witness from entering or being in the private part of the post office, using his presence as an excuse or pretext for committing an assault, such assault was unjustifiable.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 90-92; Dec. Dig. § 64.]
    9.Criminal Law (§ 400) — Best and Secondary Evidence — Production of Telegram.
    In a prosecution for assault, where defendant, a postmaster, claimed to have had a telegram from the Postmaster General to relieve the complaining witness, the court, if defendant had such telegram, should have required its production and introduction in evidence, instead of admitting defendant’s oral testimony to the fact and as to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-SS6, 1208-1210; Dec. Dig. § 400.]
    Appeal from Coleman County Court; T. J. White, Judge.
    B. F. Robey was convicted of aggravated assault, and he appeals.
    Reversed and remanded for a new trial.
    Snodgrass & Dibrell, of Coleman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

By proper complaint and information appellant was charged with an aggravated assault upon Tilden Brown, thereby inflicting serious bodily injury upon him. He was found guilty, and his penalty fixed at a fine of $25 — the lowest prescribed for that offense.

The evidence, shows that for about four years continuously before March 2, 1912, the date on which the offense is charged, said Brown had been the mailing and distributing clerk in the post office at Coleman, and had a key to the post office, and access thereto at any and all times; that appellant was the postmaster. According to appellant’s own testimony, his feelings toward Brown at that time were unkind. .It seems that, because of this, Brown wrote to the proper post office authorities at Washington, D. C., on February 27, 1912, tendering his resignation to take effect on April 1st following. On February 29, 1912, Brown was sick, and could not and did not work that day nor the next. Brown recovered sufficiently to return to his work, which he did on the evening of March 2d. As such employé at the time, Brown had the key to the post office, and access thereto. Appellant was not in the office when Brown 'returned to work on the evening of March 2d, but came in the office while Brown was at work. Brown told him that he did not understand his message of February 29th to the effect that his resignation had been accepted, stating that his resignation had been tendered to take effect on April 1st. Appellant invited him into his office in the post office, where they proceeded to talk the matter over. Appellant claimed that he had wired the department at Washington, and that the department had answered by wiring that Brown’s resignation had been accepted. Brown asked him to show him the telegram. Appellant refused. Appellant tendered Brown a warrant for his pay for the month of February, stating in the face of it that it was in full for his services, and that he had resigned. Brown refused to accept it, and, it seems, then indicated he would then quit if appellant would pay him for the two extra days. Appellant refused to do this as postmaster, but offered to do it out of his own pocket. Brown declined to accept it and accept the said warrant because it stated that he had resigned on Feb. 29, 1912. In effect appellant then ordered Brown out of the post office, and ordered him out a certain door. Brown declined to go out at that door, but offered and started to go out at the door that he usually came in and out. After getting several steps in that direction, appellant intercepted him,, caught hold of him, and by force attempted to force him out of the door that he (appellant) demanded he should go out. Brown resisted this, still offering and claiming the privilege of going out the door he ordinarily •came in and went out. Brown did not assault appellant in any way — simply resisted appellant’s attempt to force him out the door that appellant demanded he should go out. Appellant was a large man. Seeing, however, that he could not succeed in forcibly putting Brown out the door that he (appellant) wanted to force him out, he called upon the other employé in the post office at the time to come to his assistance and handle him roughly. The other employé then proceeded, under appellant’s directions, to force Brown, and they both attempted to put him out the door they wanted him to go out. In the attempt by appellant to forcibly put him out, he threw Brown against the side of the door, and dislocated Brown’s shoulder. The struggle continued. The other employé was a much larger, -taller, and heavier man, also, than Brown. They finally, after assaulting him, and committing batteries upon him, as stated, succeeded in throwing him down, the said large employé, weighing nearly 200 pounds, on top of him, and forcing him out of the door they wanted him to go out; Brown all the time claiming, and we think the evidence sufficiently shows that he claimed, to be still an employé in the department, with a right to go in and out of the office as he had been in the habit of doing. Brown testified pointedly that, in appellant’s attempt to force him out, and throwing' him against the door facing, he dislocated his shoulder. That the shoulder was dislocated was proven without question, and without doubt. The testimony authorized the jury to believe and find, as they 'did, that the injury to Brown was a serious one in contemplation of our assault and battery statute. We think the evidence is amply sufficient to show, and authorized the jury to find, that Brown was not a trespasser in attempting to go through the post office and out of it where he had been in the custom of going in and out. The proof further showed that, in order to put Brown’s shoulder, joint in place, he had to be put under an anaesthetic, and it took two physicians to replace his shoulder. He suffered therefrom considerably and for some length of time.

The court by his charge required the jury to believe that the assault and battery inflicted was a serious bodily injury before they could convict appellant of an aggravated assault. Appellant requested several special charges to the effect that, if the Postmaster General had relieved Brown from service as an employé, and appellant had employed a substitute in his place, Brown no longer had a right to go through or into the post office without appellant’s consent, and appellant had the right to prevent him from doing so, and to use sufficient force for that purpose, and by force to put him out of the post office, and if they so believed to acquit appellant. The court correctly refused these charges. They each and all ignored the fact that Brown was an employé therein, or had been, and still claimed that he was such em-ployé, and that he claimed the right to go in and out of the post office as he had usually done.

The law in misdemeanor cases is that, when appellant requests special charges which are not the law of the case, the court is not required to give them, nor is he under any obligations to give any other charge on the subject. In other words, that appellant must ask a correct charge applicable to the facts; otherwise the court is under no obligations to give it, nor to give any charge on the subject in a misdemeanor case. See Perkins v. State, 144 S. W. 245; Mealer v. State, 145 S. W. 354; and the authorities cited in said cases. This court has many times recently so held in numerous cases, as well as in many of the older decisions. It is unnecessary to collate the authorities.

Again, appellant complains that the court erred in refusing to give his charge, and complaining of the court’s charge, because the court did not charge that thé jury must believe beyond a reasonable doubt that the appellant intended to injure Brown, and, if they did not so find, to acquit appellant. The court in his charge told the jury that the use of any unlawful violence upon the person of another with the intent to injure him, whatever be the means or degree of violence used, is an assault and battery, and that an assault and battery becomes aggravated when a serious bodily injury is inflicted. Then told the jury that, if they believed from the evidence beyond a reasonable doubt that appellant, either acting alone or together with Center, said other employé, made and committed an aggravated assault and battery upon Brown by striking, wounding, etc., him, as alleged in the complaint, and thereby inflicted serious bodily injury upon him, that he would be guilty of an aggravated assault. We think this could not otherwise have been understood by the jury than that they must believe that appellant intended to injure him by committing the assaplt and battery upon him, even if that was necessary.

The law on this subject is as stated by this court in Ward v. State, 151 S. W. 1075: “Our statute (P. O. 1911, art. 1008) expressly enacts that ‘the use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or degree of the violence used, is an assault and battery.’ The next article (1009) is: ‘When an injury is caused by violence to the person, the intent to injure is presumed. ⅜ * * ’ Judge White, in his note' (section 969, P. C.), says: ‘In assault and battery, the necessary act, viz., the “use of violence upon the person of another,” is easily understood. But the necessary “intent to injure him” is not so easily explained by an affirmative description. Still, the necessary act being proved, the necessary intent to injure is known to exist as a legal necessity, whether we can discover, understand, or explain it or not, so that the two concurring will constitute the legal injury of assault and battery, unless it be shown that the act was accidental, or the intention was innocent. It may therefore be said that practically, in legal contemplation, the proof of the necessary act either is or carries with it the proof of the necessary intention to injure, so as to constitute the legal injury, unless it is rebutted by evidence showing that the legal presumption should not be indulged, which may not be by showing an absence of intention to injure, but by showing that the intention was innocent with which the act was done. McKay v. State, 44 Tex. 43.’ The least touching of another’s person wilfully is a battery. Norton v. State, 14 Tex. 387; Johnson v. State, 17 Tex. 515.”

The acts of the appellant in this case, without doubt and without question, not only show that appellant did actually commit an assault and battery upon Brown, but the circumstances show that his intent was to injure and his acts did injure the assaulted party. There are cases which raise the question of an intent to injure, and in such cases it might be the duty of the court to so specifically require the jury to believe; but this case does not raise such question. The evidence in no way indicates that appellant’s assault and battery was by accident, or innocent intent, or anything of the kind.

Appellant also contends and cites authority to indicate that by the assault and battery in this case no serious injury was inflicted upon Brown. On this subject the court charged the jury that by serious bodily injury is meant such an injury as gives rise to apprehension; an injury which is attended with danger. “You are therefore instructed, if you have a reasonable doubt as to whether the injury, if any, was a serious bodily injury, you will acquit the defendant of aggravated assault and battery.” Brown testified: That from the said injury inflicted upon him his shoulder hurt him a great deal, and pained him, and he carried it in a sling for several weeks, and it had continued to hurt him ever since. (The injury was inflicted March 2, 1912, and the case was tried and Brown- testified about September 2, 1912.) That at the time he had two doctors to see him. That they had to put him under the influence of opiates in order to pull his shoulder back in place, and they did so. One of the doctors testified: That when he examined Brown on the evening of March 2, 1912, he found his shoulder was dislocated. That he had another doctor to assist him in putting Brown’s shoulder back in place, and that they gave him an anaesthetic to do so. That there was no fracture of the bone; it was just a dislocation of the joint, the end of the bone having been thrown out of the socket. That in his opinion the injury might be considered serious in the sense that it would render it more likely to occur again. That it put the joint in a condition that it would be more easily dislocated again, and that another dislocation could be brought about without much force. That, if the arm was thrown upward or extended, it would be easy by a sudden wrench to be thrown out of socket. In our opinion the injury, under the circumstances and charge of the court, should be considered a serious one in contemplation of our statute.

The court did not err in refusing to permit the witness Center, who was the other party who committed an assault and battery upon Brown, in connection with appellant, to testify that he did not intend to injure Brown. The assault and battery is charged to have been committed by appellant, and by the charge of the court he restricted the jury to the consideration of the injury by appellant himself. The court had permitted appellant to testify that he had no intent to injure Brown.

Neither did the court commit reversible error in permitting the state to introduce a carbon copy of the resignation of Brown, sent by him to the Postmaster General on February 27, 1912. Brown himself had testified, without objection, that he had so sent his resignation to the Postmaster General on that date, resigning to take effect on April 1, 1912. The co.urt, in qualifying appellant’s bill on that subject, did so by stating that the original letter was sent to Washington, D. C., which .was beyond the jurisdiction of the court.

We have not thought it necessary to take up and discuss separately each of appellant’s claimed errors. What we have said above, we think, covers, in substance and in effect, the whole of them. We have considered them all. It is our opinion no reversible error is shown.

The judgment will therefore-be affirmed.

On Motion for Rehearing.

Appellant has filed a lengthy motion for rehearing, and brief and argument thereon. He urges that the court is in error in the opinion herein in many particulars. No other point is urged for rehearing, except one, in which there is any merit.

Upon a re-examination of the case, we have concluded that the special charges refused in this case present one question which was not presented by the court’s charge, but which should have been presented, and results in a reversal of this case. The evidence develops that appellant claimed that he had wired to the Postmaster General the fact of Tilden Brown’s resignation as an employé in the post office, and that he was so rushed with business at the post office it was necessary to have another in his stead, and that under the circumstances the Postmaster General had wired him the authority to relieve said Brown from said service as an employs, and that he had done so, and employed another in his place, and at the time of the alleged assault in this case said Brown was not an employs in said post office, and had no authority or right to go into or through the same. Of course that part of the post office building from which the public is excluded is what is meant. The trial court should therefore have submitted to the jury the appellant’s theory to the effect that, if they believed from the evidence that appellant, under the authority of the Postmaster General, had in fact relieved said Brown from the government service as an employs, and in his stead he had employed another, then said Brown no longer had the right to go into or through the private part of said post office without the consent of appellant, and, if he attempted to do so, appellant had the right to prevent him, and to use sufficient force for that purpose. And if so acting himself, or his other employs acting with him, in a bona fide effort to prevent said Brown from going into, or through said post office, committed an assault and battery upon him, and in so doing used no more force than was necessary to prevent said Brown from going into or through said post office, then to acquit him.

The substantial reverse of the proposition should also be given; that is, if appellant and his other employs used more force than was necessary, or his purpose and intention was not to prevent said Brown from going into or through said post office, but using that as an excuse or pretext for committing an assault and battery upon Brown, then his assault and battery upon Brown would have been unjustifiable. We think the evidence justifies a charge on this feature of the case.

It is to be noted that in the interview between appellant and Brown just before the assault appellant claimed to have had a telegram from the Postmaster General to do what he had done in relieving Brown and employing another. Brown called for this telegram at the time. Appellant did not produce it. On the trial appellant testified that he had such telegram, but did not produce it. If he had such a telegram, the court should have required its production and introduction in evidence, instead of appellant’s oral testimony to the fact and its contents.

For the error above pointed out, the rehearing is granted, the former judgment of affirmance herein is set aside, and this cause is now reversed and remanded for a new trial.