text:
    BRAILAFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Criminal Law (§ 723) — Trial—Improper Argument.
    A statement by the district attorney that, if the jury did not convict accused for this offense, “you will see that you will have to try him for a higher offense in the near future; the way to stop this is to send the defendant to the penitentiary” — was improper and calculated to prejudice accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. § 723.]
    2. Criminal Law (§ 699) — Triai>-Improper Argument — Action in Trial Court.
    The trial court in criminal cases has authority to and should prohibit improper argument by the district attorney not based on the evidence.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1655, 1656; Dec. Dig. § 699.]

      3. Homicide (§ 310) — Instructions — Assault with Intent to Mubdeb.
    The court instructed that if accused unlawfully and with malice aforethought made an assault upon T. and shot him with the intent to kill, but at the time his intent was to shoot and kill G., but he shot T. by mistake, the jury should find accused guilty of assault with intent to murder. Held, that the charge was erroneous; accused having been charged in the indictment with shooting at T. and not at G.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    4. Homicide (§ 310) — Instructions — Manslaughter^-Applicabilitx- to Evidence.
    Where it appeared that G. had snapped a pistol in accused’s face and shot at him several times as he ran away, whereupon accused procured a gun and a few minutes thereafter saw persons whom he believed to be G. and his relative and fired at the one he thought was G., but hit the other, who was in fact T., an instruction that if accused shot at T., thinking he was shooting at G., he would be guilty of assault to murder was erroneous for not submitting the issue of accused’s state of mind when he shot at T., viewed in the light of his mistake in believing he was shooting at G., since the evidence as to the mistake might have authorized a verdict of manslaughter if T. had been killed, requiring an instruction as to aggravated assault.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 316.]
    5. Homicide (§ 310) — Instbuctions—Aggea-vated Assault.
    Under the circumstances, the court should have charged upon aggravated assault.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Hoy Brailaford was convicted of assault to murder, and appeals.
    Reversed and remanded.
    Forse & Wigley, of Newton, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

       For other cases see same topic and section NUMBER in Deo. 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

   DAVIDSON, P. J.

Appellant 'was convicted of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

The first bill of exceptions complains of the following remarks of the district attorney: “Gentlemen of the jury, if you don’t convict this defendant for this offense, you you will see you will have to try him for a higher offense in the near future; the way to stop this is to send this defendant to the penitentiary.” Objection was urged to this because there was no evidence that appellant was charged with any other offense, and such remarks were calculated to prejudice him before the jury. The above remarks, were not justified or called for and were erroneous. We have frequently expressed the hope that counsel would not jeopardize convictions by intemperate remarks and such arguments as are not to be justified under the law and the facts.

This court ought not to be called on to reverse on such matters. Trial courts ought not to permit such performances. They have authority to do so and should exercise that authority, and, if necessary, plenarily.

The court gave the following charge, to which exception was reserved: “If .you believe from the evidence beyond a reasonable doubt that the defendant Hoy Braila-ford in the county of Newton and state of Texas on or about the time charged in the indictment with a deadly weapon did unlawfully with malice aforethought make an assault in and upon Hamp Thomas and did shoot the said Hamp Thomas with a gun within carrying distance with intent to kill, and at the time he shot, if he did shoot, his intent, if any, was to shoot and kill Sam Gatling, but by mistake he shot, if he did shoot, one 1-Iamp Thomas, then you will find the defendant guilty of assault with intent to murder and assess his punishment,” etc. We are of opinion this charge is wrong. Appellant was not charged with shooting at Sam Gatling but shooting at Hamp Thomas.

It is further objected that the charge failed to instruct the jury that, had death resulted from the alleged shooting and it had been manslaughter, then the jury would consider the offense of aggravated assault, and it was the duty of the court to charge upon aggravated assault under the evidence in this case. Appellant had had a previous difficulty with the Gatling boys a few moments before shooting at 1-Iamp Thomas. Sam Gatling had snapped a pistol in his face a time or two, which caused appellant to flee, and as he ran away Gatling shot at him two or three times. Appellant secured a gun, which was loaded with bird shot, and passing along the road he saw two parties whom he believed to be the Gatlings and fired at the one he thought to be Sam Gatling. The distance between the parties was 34 yards. This occurred at night. The gun was loaded with bird shot. Several of the shot struck Thomas, but there seems to have been no serious injury. If appellant shot at Thomas, thinking it was Sam Gatling, under the circumstances, had he killed Sam Gatling, the offense might not be higher than manslaughter; at least it would have been a serious issue in the case. Gatling had just snapped his pistol at him and had fired at him as he ran away. This certainly constituted, on the part of Gatling, an aggravated assault, if not an assault with intent to murder appellant. If, a few minutes afterwards, he met Sam Gatling and his mind had not cooled and he had shot Sam Gatling, manslaughter would have been a very serious question in the case and one that would require a submission of that issue to the jury. Prom this standpoint the charge quoted above is erroneous, wherein the court charged the jury that if appellant shot at Hamp Thomas, thinking he was shooting at Sam Gatling, he would be guilty of assault to murder. This was settling the question adversely to appellant without any reference as to what the jury might think as to the condition of appellant’s mind at the time he shot at Hamp Thomas, thinking it was Sam Gatling. Had it been Sam Gatling, as appellant says he believed it was at the time he shot, the issue of manslaughter would have been prominent and would have required a charge on the part of the court. If it had been no higher ofíense than manslaughter as to Sam Gatling, a homicide not following, the issue of aggravated assault was in the ease and he could not be guilty of any higher grade of culpability in shooting Hamp Thomas, under the circumstances, than he would have been had he in fact shot Sam Gatling. The doctrine of mistake also enters this phase of the case and required the court to charge upon aggravated assault.

This charge as given was clearly erroneous ; and the further error is noted in this connection that the court failed to charge upon aggravated assault. This was also erroneous. In this connection, in view of the charge, the court should have submitted the issue of the condition of defendant’s mind at the time he shot at Thomas, viewed in the light of his mistake in believing he was shooting at Sam Gatling.

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


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    KNIGHT v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Perjury (§ 26) — Indictment — Traverse of Affidavit.
    An indictment charging false swearing, in making an affidavit to procure a marriage license, was defective for alleging that the girl mentioned in the affidavit was not then and there 21 years of age, when the affidavit was averred to have merely stated that she was 18 years of age.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    2. Perjury (§ 37) — Instructions.
    It was error for the instructions in a prosecution for false swearing not to define the terms “deliberately” and “willfully.”
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§134i-138; Dec. Dig. § 37.]
    3. Perjury (§ 37) — Instructions — Weight oe Evidence.
    In a prosecution for false swearing it is necessary that the jury be charged that the case must be proved by two witnesses, or by one witness and the requisite corroborative evidence.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    4. Perjury (§ 37) — Instructions—Mistake.
    In a prosecution for falsely swearing, in an affidavit to procure a marriage license, that the woman was 18 years of age, accused testified that they did not have any conversation about procuring the license, but that the license clerk asked whom the license was for, and he said for himself; and in answer to a question whether he was 21 years of age said, “I look like it, don’t I?” and- also stated that he would not swear to the girl’s age, not knowing it, and was asked, “How old would you take her to be?” and he said, “I don’t know, 20 to 23 years of age,” and that the clerk made out the license and told him to sign his name, and that accused swore that the statement was true “to the best of his knowledge.” Held, that the evidence raised the issue of mistake in swearing as to the girl’s age so as to require an instruction thereon.
    [Ed. Note — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    5. Criminal Law (§ 770) — Instructions— Applicability to' Issues.
    An appropriate instruction should be given as to every material question raised by the evidence favorable to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.j
    6. Indictment and Information (§ -171) — Evidence — Proof.
    The evidence should conform to and support the allegations of the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 636, 637, 549; Dee. Dig. § 171.]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Isaac S. Knight was convicted of false swearing, and appeals.
    Reversed, and prosecution dismissed.
    I. D. Ferguson, of Denton, and W. F. Ramsey, of Austin, for appellant. H. R. Wilson,- Co. Atty., and F. M. Bottorfí, Asst. Co. Atty., both of Denton, and C. B. 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

   DAVIDSON, P. J.

The indictment charge» appellant with false swearing in that he deliberately, corruptly, and willfully, under the sanction of the oath administered by the county clerk of Denton county, made the following voluntary false statement and declaration and affidavit in writing. The instrument is as follows:

“I, I. S. Knight, do solemnly swear that I am 21 years of age, and that Miss Bessie Welborn is 18 years of age, and that there are no legal objections to our marriage. Isaac S. Knight.
“Sworn to and subscribed before me this the 21st day of Oct., A. D. 1912. Oscar T. Button, Clerk County Court, Denton County, Texas.”

The traverse is as follows: “Whereas, in truth and in fact the said Miss Bessie Wel-born was not then and there 21 years of age, and in truth and in fact there were then and there legal objections to the marriage of the said Isaac S. Knight and Miss Bessie Wel-born, which said false affidavit, so made by the said Isaac S. Knight, was not then and there required by law, nor made in the course of a judicial proceeding, yet the same then and there was nevertheless willfully and deliberately made, and was willfully and deliberately false, as the said Isaac S. Knight then and there well knew, against the peace and dignity of the state. O. O. Yeatts, Foreman of the Grand Jury.”

Several grounds were urged against the validity of this indictment. At least one of these objections is well taken without question. The affidavit alleges defendant swore the girl was of the age of 18 years, whereas the indictment alleges that she was not then and there 21 years of age. It would need no argument to sustain the proposition that whatever is sought to be charged as false in the affidavit should be traversed as shown by the face of the affidavit. That instrument alleged that the girl was 18 years of age, not that she was then and there 21 years of age. The affidavit alleges one age and the indictment traverses another age, and one not stated by the defendant, and one to which he did not swear. The accused must be prosecuted for the falsity of the affidavit, and not for something which was not contained in the afudavit and to which he did not swear. The indictment does not charge an offense in that the statement and the allegations in the traverse do not meet nor correspond, and the indictment seeks to charge him with swearing to a thing to which he did not swear. This renders the indictment vicious, and, therefore, it does not charge the offense of which appellant was guilty, if guilty. This must reverse and dismiss the prosecution. The indictment should also traverse the legal objections specifically by stating what they were.

Some of the objections urged to the charge were as to its contents and omissions. The charge nowhere defines the terms “deliberately” and “willfully.” Exception was taken to this in the trial court and is urged here as error. These objections were timely made and entitle appellant to a reversal. This charge should have been given. Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309. That case cites the authorities, and it is unnecessary to cite other cases.

Exception was reserved to the court’s charge because it failed to instruct the jury that it was necessary, before a conviction could be secured, tnat the state’s case must be sustained by two witnesses, or one witness by the requisite corroborative evidence. This charge is necessary. Appellant urged this in the trial court, and is urging it here for reversal. His contention is well taken. Branch’s Crim. Law, § 657; Gartman v. State, 16 Tex. App. 215; Washington v. State, 22 Tex. App. 32, 3 S. W. 228; Smith v. State, 22 Tex. App. 200, 2 S. W. 542; Brookin v. State, 27 Tex. App. 701, 11 S. W. 645; Wilson v. State, 27 Tex. App. 50, 10 S. W. 749, 11 Am. St. Rep. 180; Miller v. State, 27 Tex. App. 498, 11 S. W. 485; Grandison v. State, 29 Tex. App. 186, 15 S. W. 174; Aguierre v. State, 31 Tex. Cr. R. 519, 21 S. W. 256. These are sufficient cases. In addition we cite the statute.

It is contended that the doctrine of inadvertence or mistake should have been charged. The evidence raising this issue is found in the defendant’s testimony. He says; “We did not have any conversation about procuring the license. When I went and applied for the license Mr. Button stated to me, ‘Who are these license for?’ and I said, ‘For myself.’ He said, ‘Are you 21 years old?’ And I said, T look like it, don’t I?’ He said, ‘Is she 18 years old?’ and I said, T wouldn’t swear to it, not knowing her age.;’ I didn’t want to swear to. something I didn’t know. He said, ‘How old would you take her to be?’ and I said, T don’t know; 20 to 23 years of age.’ After he made out the license he showed It to me, and said, ‘Sign your name,’ and ,1 signed it, and he said, ‘You solemnly swear this statement is true and correct?’ and I said', ‘To the best of my knowledge.’ That is the statement I made to him.” This raises the question, and the matter should have been given in charge to the jury. See Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309. It is unnecessary to cite other authorities.

Wherever a question is raised favorable to a defendant, an appropriate charge should be given so that the jury may decide that issue.

The question of parlance was also raised. This arises out of me conflict in the indictment between the age set out in the affidavit and that alleged in the traverse. One alleges the age to be 18, the other over 21.

It is fundamental that the evidence should correspond with and support the allegations. Appellant did not swear the girl was 21 years of age, but did swear she was 18. She could have easily been 18 years of age and under 21. It is necessary to further discuss these matters.

For the errors indicated the judgment is reversed, and the prosecution is ordered dismissed, with the right of the state to hold appellant under proper affidavit if it desires further prosecution.


author: HARPER, J.

text:
    TRINKLE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Perjury (§ 11) — Testimony—Materiality.
    Where the grand jury investigating violations of the law prohibiting the sale and storing of intoxicating liquors investigated _ the question whether certain persons had received liquor, and stored the same in a house rented by a witness before the grand jury, and whether he knew that the persons had received liquor on a designated date and stored it in the house, the false testimony of the witness that no liquor had been received and stored in his house constituted perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. § 11.]

      2. Perjury (§ 31) — Evidence—Sufficiency.
    The state on a trial for- perjury must not only prove the alleged perjured testimony, but must prove that accused knew that the testimony was false when he gave it.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 107; Dec. Dig. § 31.]
    3. Perjury (§ 33) — Evidence—Burden of Proof.
    On a trial for perjury, evidence held not to show that accused knew that the alleged perjured testimony was false when he gave it.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. §, 33.]
    4. Perjury (§ 33) — Evidence—Sufficiency.
    That accused on a trial for perjury knew that the alleged perjured testimony was false when he gave it may be proved by circumstantial evidence.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§, 117-124; Dec. Dig. § 33.]
    5. Criminal Law (§ 306) — Evidence—Presumptions.
    Where the placing of liquor in a room was depended on as a circumstance to prove that accused charged with perjury in testifying that liquor was not placed in his house knew that the testimony was false, the evidence must show that accused had control of and was in charge of the room, under the ■ rule that the court cannot base one presumption on another presumption.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 719; Dee. Dig., § 306.]
    6. Perjury (§ 32) — Evidence—Admissibility.
    On a trial for perjury based on accused testifying that liquor was not received and stored in his house on a designated date, the testimony of the receipt of liquor on that date was admissible, but the receipt of liquor on later dates was not admissible, in the absence of evidence that accused had notice thereof.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    Appeal from District Court, Upshur County; R. W. Simpson, Judge.
    R. C. Trinkle was convicted of perjury, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

       For otaer 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

   HARPER, J.

Appellant was prosecuted and convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant’s motion to quash the indictment is on a number of grounds, none of which are well taken. If the grand jury was investigating violations of the law prohibiting the sale and storing of intoxicating liquors, it would be a material inquiry whether or not certain persons had received 15 barrels of beer and stored it in a house rented by Mr. Trinkle, and if he knew that a person had received that much beer on the 30th day of May and stored it in his house, and answered the grand jury that no such liquor had been received and stored in his house, an indictment for perjury based on those facts could and should be sustained, and the court did not err in so doing.

The state proved by two credible witnesses that appellant was summoned before the grand jury, duly sworn, and testified. The substance of his testimony before the grand jury is stated by Mr. B. C. Buie in the following language: “There was a question before that grand jury upon that occasion about some shipments of beer to' J. Hanson at Big Sandy, Tex. I remember R. C. Trinkle being questioned about a particular shipment of about 15 casks or barrels of beer, shipped to J. Hanson at Big Sandy, Tex., on or about the 30th of May, 1911, a special shipment of 15 casks of beer. I remember what his testimony was with reference to this 15 casks or barrels of beer that was shipped down there to J. Hanson about that date. R. O. Trinkle said that there was 15 barrels all right, but that it was sugar and coffee, and was not any beer. Trinkle was questioned with reference to whether or not 15 barrels or casks were unloaded in the back end of his store or place of business, and he said that it was; he said that it was sugar and coffee. He stated nothing about from where the sugar and coffee came. He stated it was shipped to Big Sandy. He was questioned especially about this shipment of beer to J. Hanson on that particular date on which this barrel goods was unloaded in his house, and he stated whether or not this beer or stuff shipped to Hanson was unloaded in his house; he said it was sugar and coffee, and was not any beer, and he said it was unloaded. His attention was called to the amount of stuff; there was something like seven or eight barrels of sugar and nearly the same amount of coffee; and he was questioned as to whether or not he handled that much in his- business. The particular matter which the grand jury was investigating at that time was in regard to that beel that ■ was shipped to Hanson. Hanson had been before the grand jury and had testified with reference to it, and Trinkle was called before the grand jury on the proposition as to whether Hanson had sworn the truth or falsely; and Trinkle was called to testify as to whether or not this beer had been put back there. Trinkle was also questioned at that time about whether or not other shipments of beer that had been sent to J. Hanson had been unloaded in the back of his house; there was something said about that, but then I don’t remember exactly how that was. I remember that there was something said about maybe two or three different shipments. My recollection is that he said none of them had been unloaded back there. It is my recollection that Trinkle said there had never been any beer sent to J. Hanson, or anybody else, and unloaded in the back end of his house.” Mr. W. G. Barnwell testified, in substance, to the same facts, he being also a member of the grand jury.Thus the fact that Mr. Trinkle so testified is amply proven, but it was incumbent upon the state to prove that lie knew the testimony was false when he so testified.

J. G. Howell testified that J. Hanson received 15 barrels of beer on May 30th, and he delivered it to him. John Kellar testified that he hauled this beer for J. Hanson and unloaded it at the back of a building; Mr. Trinkle occupying the front part of the building. He says he did not see Mr. Trinkle, and does not know whether Mr. Trinkle knew anything about it or not. No witness testifies that Mr. Trinkle had any personal knowledge that the 15 barrels of beer was received by J. Hanson on that date, and there is no circumstance in evidence authorizing that conclusion or deduction other than the testimony of the grand juryman hereinbefore stated; that is, when Mr. Trinkle was asked about 15 barrels being unloaded at his door, he stated he had received 15 barrels, but that it was sugar and coffee. On- the trial of this case, Mr. Trinkle still so testifies, and H. J. Peltzer testifies that about this time he closed his commissary and sold Trinkle a large bill of goods, some sugar and coffee, not remembering the amount. Would the circumstance that, while denying that he had any knowledge that the beer was received and stored in his house, he falsified about the receipt of the sugar and coffee, authorize the jury to find that he knew the beer was received, in the absence of any other testimony, and all testimony to bring positive knowledge to him? Again, Trinkle positively swears that the portion of the building in which the dray-man testifies the beer was unloaded was not rented by him or under his control. The building is a store building divided by partition walls. He testifies the rear room was not rented nor used by him; that he did not have a key to this room. There is no testimony, other than suspicious circumstances, that this room was under his control, and, if not, the unloading of the beer there would trace no knowledge to him. It is true the landlord, Mr. Lowry, is shown to be dead, and had been dead for some time. Certainly there is some one living, his wife or other person, who knows whether or not Trinkle had this portion under his control and management. At least, it may be said the absence of testimony does not prove any fact, especially when there is positive testimony (the testimony of Trinkle) that such was not the fact. We are forced to the conclusion, after reading and re-reading the record before us, that the testimony fails to trace notice to Trinkle that J. Hanson received the barrels of beer on May 30th; that at the time he testified before the grand jury in June he had knowledge of that fact, and, as the prosecution is based on that fact, the judgment must be reversed and remanded. Of course, knowledge of this fact can be proven by circumstantial evidence as any other fact, but if .the placing of the beer in a certain room is depended on as a circumstance to prove knowledge, then certainly the testimony ought to show that appellant had control of and was in charge of this room. We cannot base one presumption on another presumption.

The testimony of the receipt of this 15 barrels of beer on May 30th by Hanson was admissible in evidence, as the state was seeking to prove that appellant had testified falsely in regard thereto, and endeavored to so show. But the receipt of a shipment of beer by J. Hanson on May 18th, April 29th, April 15th, and March 24th were not admissible under the record before us. There was no evidence offered that appellant had any notice of the receipt of these four latter shipments; no evidence that this beer was carried to the building in question, if it was in appellant’s control. On another trial the testimony as to these latter shipments will not be admitted, unless the state introduces some evidence that appellant also had knowledge of the receipt of these shipments.

There are other questions in the record, but, as it will be necessary to reverse and remand the case on account of the above matters, we do not deem it necessary to discuss them.

The judgment is reversed, and the cause remanded.


text:
    RUSSELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Assault and Battery (§ 92) — Criminal Prosecutions — Evidence—Sufficiency.
    Evidence showing that accused struck the prosecuting witness on the knuckles of one of her hands with a stick, with no evidence as to the size of the stick, or that the wounds of the prosecuting witness were serious, would not support a conviction for aggravated assault) as it failed to show that the stick was a deadly weapon, or that serious bodily injury was inflicted.
    LEd. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    2. Assault and Battery (§ 96) — Criminal Prosecutions — Instructions — Self-De-eense.
    On a trial for aggravated assault, it was error to charge that every person was permitted by law to defend himself against unlawful violence to his person, but that, in exercising this right, he was only permitted to use such degree of violence as was reasonably necessary to protect himself against such unlawful violence, and that if accused in inflicting the injury charged acted in her own necessary self-defense against an assault made by the prosecuting witness, or to prevent .such assault, and used no greater force than was necessary to prevent such assault, she should be found not guilty, and to refuse instructions that a reasonable apprehension of bodily harm would excuse a party in using all necessary force to protect her person; that it was not necessary that there should be actual danger provided she acted upon a reasonable apprehension of danger as it appeared to her from her standpoint at the time; that in such case the party acting under such real or apparent danger was not bound to retreat or avoid the necessity of wounding her assailant; that if, when accused struct, the prosecuting witness had made, was making, and was about to make, an attack on accused, which, under the circumstances, caused her to have a reasonable expectation of bodily harm, and if acting thereunder she struck the prosecuting witness, she should be acquitted; that if the prosecuting witness was armed with a weapon, and the manner of its use such as were reasonably calculated to produce bodily harm, the' law presumed an intention to inflict bodily harm; that, if the prosecuting witness was making, had made, or was about to make an attack, accused had the legal right to strike back and use all necessary force to repel the attack, and that she would have the same right to defend her person against an attack made, or about to be made, without any weapon as against an attack with a weapon, except that the degree of force authorized would depend upon the character of the attack, the whole matter to be judged from accused’s standpoint, where there was evidence tending to show that the prosecuting witness was chasing accused when accused picked up a stick and struck the prosecuting witness, and that the prosecuting witness inflicted several wounds on accused’s body with a knife, since, if such were the facts, accused had a perfect right of self-defense without limitation, and was not bound to retreat or avoid more force than was necessary.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §,§ 142-150; Dec. Dig. § 96. ]
    3. Criminal Law (§ 364) —Evidence — Res Gestas.
    Where a few minutes after a fight and while a wound received in such fight was bleeding, and the party was laboring under the excitement incident to the fight, one of the parties made a statement to a physician as to the difficulty and how it occurred, such statement should have been admitted on such party’s trial for aggravated assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dee. Dig. § 364.]
    4. Criminal Law (§ 448) — Evidence—Conclusions.
    It was error to permit a witness to testify that he thought his license as a saloon keeper was forfeited by the authorities for the assigned reason that he was keeping a disorderly house, where it was not attempted to be shown that he, in fact, was keeping a disorderly house, or that the license was forfeited for that reason, since his testimony was merely an expression of opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039,1041-1043,1045, 1048-1051; Dec. Dig. § 448.]
    Appeal from Jefferson County Court'; R. W. Wilson, Judge.
    Amy Russell was convicted of aggravated assault, and she appeals. Reversed and remanded.
    Blain & Howth, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       For other oases see same topic and section NUMBER in Deo. 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

   DAVIDSON, P. J.

Appellant was convicted of aggravated assault; her punishment being assessed at a fine of $50 and 90 days imprisonment in the county jail.

The complaint and information charged that she beat Chaney Thomas, wounding and bruising her with a club, and inflicted serious bodily injury upon her, and that the club was a deadly weapon. The evidence fails to show the size of the club or stick, and there is no evidence as to whether it was a deadly weapon or was not a deadly weapon, except the statement of facts simply shows the defendant struck Chaney Thomas on the knuckles of one of her hands with a stick. There is no evidence that the wounds were serious, and none offered to so show. Chaney Thomas testified that was the only bruise she had resulting from the fight. The evidence is very much in conflict as to who was the aggressive party. Chaney Thomas was armed with a knife, and inflicted several serious wounds upon the defendant. There is evidence that Chaney Thomas chased appellant, and that appellant fought back with the stick, and that Chaney Thomas during the fight .cut her several times. This is a sufficient general statement of the case, we think, to bring in review the questions raised.

Under this state of ease, appellant is not guilty of aggravated assault. There is no evidence that the stick was a deadly weapon, or that serious bodily injury was inflicted, and no attempt to show either. If appellant was the aggressive party, the assault under this record would not be of a more serious nature than simple assault. For this reason the judgment must be reversed. This matter is raised in several ways; and we deem it unnecessary to go further than to state that the evidence is not sufficient to support a conviction for aggravated assault, and, if the evidence upon another trial is such as developed by this record, the court should not submit the issue of aggravated assault to the jury. It is thought not necessary to cite authorities.

The court charged the jury in reference to self-defense “that every person is permitted by law to defend himself against any act of unlawful violence offered to his person, but in exercising this right of self-defense he is only permitted to use such degree of violence as is reasonably necessary to prevent or protect himself against such unlawful violence. Now if you believe from the evidence that the defendant in inflicting the injury upon the said Ghaney Thomas as charged in the complaint acted in her own necessary self-defense against an assault made by said Ghaney Thomas upon her, or to .prevent such assault, and that she did not use greater force than was necessary to prevent such assault, then you will find her not guilty.” Objections were urged to this charge, and the following special requested instructions presented to the court, which were refused: “A reasonable apprehension of bodily barm will excuse a party in using all necessary force to protect her person, and it is not necessary that there should be actual danger, provided she acted upon a reasonable apprehension of danger as it appeared to her from her standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of wounding her assailant. If from the evidence you believe the defendant struck the said Chaney Thomas, but further believe that at the time of so doing she had made an attack on her, or was making or about to make an attack on her, which' from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of Chaney Thomas caused her to have a reasonable expectation of fear of bodily injury, and that, acting under such reasonable expectation or fear, the defendant struck Chaney Thomas, then you should acquit her; and if Chaney Thomas was armed at the time she was struck and was making such attack on defendant, and if the weapon used by her and the manner of its use were such as were reasonably calculated to produce bodily harm, then the law presumes that she intended to inflict bodily injury upon the defendant. In other words, if you believe Chaney Thomas was making, had made, or was about to make an attack on defendant, then you are instructed defendant had the legal right to strike back in her own defense and to use all necessary force to repel the attack upon her, and, if you so believe, you will acquit her, or, if upon this point you have a reasonable doubt, you will give her the benefit of such doubt and acquit her. And in this connection you are further instructed that she would have the same right to defend her person against an attack made or about to be, made without any weapon as she would against such attack with a weapon, except that the degree of force which she would be authorized to use would depend upon the character of attack made or about to be made, and the whole matter must be judged of from defendant’s standpoint.”

Appellant testified that “Chaney began to walk fast, and, when I crossed the street, I run, and Chaney run behind me, and this board was lying down there, and Chaney run at me, and I never did get to raise the thing up, when she run at me and hit me with her knife, and I dropped the stick.” Beatrice Roberts testified: “Amy went on down the street, and Chaney gets up and goes down the street behind her. She had the knife in her hand.” Charles Ainsworth testified: “I didn’t see who struck the first lick. I saw Chaney Thomas running Amy Russell with a knife, and Amy running. The actual attack occurred round the corner from me.” Under this testimony, which is rather a concrete statement of the case, the court’s charge was wrong. If Chaney Thomas was chasing Amy Russell, and Amy Russell was trying to get the stick, and even did get it and strike her, she had the perfect right of self-defense without any limitation. She was not required to retreat or avoid more force than was necessary. Chaney Thomas was chasing her with a knife, and the facts show inflicted several sharp wounds upon the body of appellant with the knife. The court’s charge was error, and the special charge requested by appellant more correctly presented the law applicable to the case.

Bill of exceptions was, reserved to the action of the court refusing to permit Dr. Winters to testify to a res gestae statement of appellant a few minutes after the difficulty. Dr. Winters was called in as physician a few minutes after the difficulty, and while the wound was bleeding and appellant laboring under 'the excitement incident to a fight of this sort She made a statement to Dr. Winters as to the difficulty, and how it occurred. If upon another trial it is offered under the circumstances stated, we are of opinion that it should be permitted to go to the jury. The bill is lengthy, and it is unnecessary here, we think, to state all the matters contained in the bill, but as presented we think it was a res gestae statement.

While the witness Ainsworth was on the stand testifying, over objections of -appellant, he was required to answer that his license as saloon keeper had been forfeited, and when asked if it was not forfeited for the assigned reason, that he was keeping a house of prostitution, he answered, “I think so.” We are of opinion that this evidence as here presented upon another trial should not be permitted to go to the jury. This is but the statement of conclusion of the witness why he thought the authority forfeiting the license did so. It was not undertaken to show as a fact that appellant was keeping a house of prostitution in connection with his saloon, or that it was a disorderly house, or that as a fact it was for this reason forfeited. They were only proving by him the fact that his license had been forfeited, and that he thought the reason for it was that the forfeiting authority thought he had been using it as a disorderly house. It was but an expression of opinion on the part of the witness that he thought such was the reason. As that matter is presented in the bill, it should not have been permitted to go to the jury.

The judgment is reversed, and the cause is remanded.


text:
    DRUMMOND v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Criminal Law (§, 1038) — Appeal — Reversible Error.
    In a prosecution for a misdemeanor, the failure of the court to charge upon the defensive evidence offered will not necessitate a reversal, where no special charge was requested.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    2. Larceny (§ 3) — What Constitutes.
    Where accused had found a pair of gloves, which the prosecuting witness had left in the post office, and, thinking that they belonged to another person, took them to- give to such other person, but, on seeing a lost notice of the prosecuting witness, returned them to him, accused was not guilty of larceny; there being no intent on his part to appropriate the gloves to his own use.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 3-10; Dec. Dig. § 3.]
    Appeal from Archer County Court; J. S. Melugin, Judge.
    John Drummond was convicted of theft, and he appeals.
    Reversed and remanded.
    W. E. Forgy, of Archer City, and Mathis & Kay, of Wichita Falls, 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

   HARPER, J.

Appellant was prosecuted and convicted, charged with theft of a pair of gloves.

Jeff Lyles testified he was in Dundee, went in the post office, and left his gloves lying on the shelf;. that he returned to the post office some time afterward, and found they were gone, and he then advertised for them; that two days later he was again in Dundee, when appellant approached him with the gloves and asked him if they were his gloves, and when he replied they were, appellant delivered them to him, stating at the time he found them at the post office, and, thinking they belonged to Mr. Parker, and left there by him, he had taken them to deliver to Mr. Parker, but when he learned of his (Lyle's’) advertisement he thought it proper to bring them to him and see if they belonged to him.

Appellant testified to going to the post office and finding the gloves on the shelf; that he thought they belonged to Mr. Parker, and took them to return them to Mr. Parker; that during the same day he learned Mr. Lyles claimed to have lost his gloves, and as soon as Mr. Lyles returned to town he carried them to him, explaining the matter to him. In his testimony he is supported by his father, sister, and Mr. Maxwell. Appellant introduced testimony showing that his reputation was that of a quiet, law-abiding boy.

The court, in his charge, did not present affirmatively appellant’s defensive evidence; but, this being a misdemeanor, no special charge being requested in regard thereto, we would not reverse for this reason. However, we do not think-that the evidence discloses any criminal intent in taking the gloves, nor any disposition to deprive the owner of the gloves, nor their value, nor intent on the part of appellant to appropriate them to his own use. Appellant is a young man or boy, whose reputation appears to be unsullied prior to this transaction, and with this meager evidence we cannot get our consent to brand him as a thief in early life.

To our mind, the evidence completely refutes the idea of any criminal intent on his part, and the judgment is reversed, and the cause is remanded.


author: PRENDERGAST, J.

text:
    PARTRIDGE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Indictment and Information (§ 110*) — Following Words of Statute.
    The complaint and information for catching fish on the inclosed land of another without the owner’s consent, the inclosure being less than 2,000 acres, following the statute completely, are sufficient against motion to quash.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. & 110.*]
    2. Criminal Law (§ 1099*) — Appeal—Statement of Facts — Time for Filing.
    A statement of facts, not filed till 24 days after adjournment of the term at which defendant was tried, is too late, and so cannot be considered.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2866-2880; 1099.*] see Criminal Dee. Dig. §
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    J. A. Partridge was convicted, and appeals.
    Affirmed.
    See, also, 147 S. W. 234.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was fined ⅞10 under a complaint and information charging him -with unlawfully catching fish upon the inclosed land of another without the owner’s consent, the inclosure containing less .than 2,000 acres. The complaint and information follow the statute (P. C. art. 1255) completely, and are sufficient against appellant’s motion to quash. Berry v. State, 156 S. W. 627.

There is in the record what purports to be a statement of facts; but it cannot be considered, because filed too late. The court at which he was tried adjourned October 18, 1912, and what purports to be the statement of facts was not filed until November 11, 1912, 24 days after adjournment. Durham v. State, 155 S. W. 222.

In the absence of a statement of facts, no other question is raised which we can consider.

The judgment is affirmed.