Barton v. State , 34 Tex. Crim. 613 ( 1895 )

DAVIDSON, Judge.

Appellant was convicted of assault with intent to murder, and his punisnment assessed at four years in the penitentiary. After his conviction he filed an affidavit, in which it is-stated he had no counsel until his case was called for trial; that then A. B. Graham, an attorney, was appointed to defend him; that the trial proceeded without any preparation therefor; that since his conviction his mother has employed counsel for-him. No objection was-raised to the counsel appointed; none to proceeding with the trial. It is not even stated that any further preparation was necessary before going to trial. No complaint was made against counsel trying him. It is not intimated that any injury was suffered on account of matters set up in the affidavit. It is not even claimed his employed attorney would or could have done better for him than his appointed counsel. And we are of the opinion that he suffered nothing at the hands of the counsel who defended him. He seems to have been as well defended as could have been done under the circumstances attending his .case. If he had desired time for further preparation, he should have said so before going to trial.

Affidavits of two jurors attached to his motion for a new trial show, in substance, that each juror who tried the case wrote his verdict upon a slip of paper, in pursuance to an agreement, and these verdicts were then to be added together, and the sum total to be divided by twelve, and this quotient was to constitute the verdict in the case. The result thus obtained was three years and ten months. The verdict, however, returned into court, was four years. The agreement to abide the result is shown, therefore, not to have been adhered to by the jury, but was entirely disregarded and set at naught. “The impropriety in such cases is said to consist in the agreement to be bound by the result attained by the terms of the agreement,” and not in the breach of such agreement. Pruitt v. The State, 30 Texas Crim. App., 156; Willson's Crim. Proc., sec. 2541.

The evidence fully justifies the verdict. The assault was made by appellant upon his divorced wife with a razor. He entered the room where she and others were assembled, waiting upon and sitting up with a sick friend, and without a word seized his victim and cut her throat, and, when she fled, pursued, and cut at her several other times, twice cutting her clothing, and then fled. The evidence is uncontradicted. The defendant testified about as did the other witnesses in this respect.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.