Jackson v. State , 90 Tex. Crim. 369 ( 1921 )

Conviction is for aggravated assault; punishment fixed at a fine of $25.

The alleged ground of aggravation is the use of a deadly weapon.

While Mrs. Johnson and Mrs. Jackson were conversing over the telephone, a party line, Scroggins picked up the receiver, and, hearing the conversation, made a remark which was construed by Mrs. Jackson as offensive, though Scroggins claimed that it was not so intended. Later, while Scroggins and two companions were riding horseback along the road, passing the home of the appellant, W.T. Jackson, he accosted them, and, according to the State's testimony, commanded the separation of Scroggins from his companions, and in an angry manner and tone, leveled his gun or pointed it at Scroggins, telling him that if he did not go to the house and apologize to Mrs. Jackson, he would be killed by the appellant. Accompanying this action or preceding it, a noise was heard indicating the cocking of the gun. Scoggins complied with the demand and the appellant held the gun on him while he went to the house and made the apology.

Appellant's theory is to the effect that upon seeing Scroggins and his companions, he got his gun and went to the road and accosted them and demanded that Scroggins should go to the house and apologize to Mrs. Jackson; that Scroggins, without hesitation, did so, the appellant following him without presenting his gun, which, according to his testimony, he carried for protection, understanding that Scroggins was in the habit of going armed.

The court instructed the jury thus:

"A shotgun is a deadly weapon but the merely having a shotgun in one's possession, or the carrying one in the ordinary manner or way one may or is usually carried does not constitute an assault and only becomes the means of an assault when used in a threatening manner or presenting it in a shooting position."

Appellant requested an instruction that a deadly weapon was one which "in the manner used is likely to produce death or serious bodily harm and complains of the refusal of this charge.

The real issue was whether an assault was committed. If appellant cocked and presented a shotgun with threatening words and manner, as described by the State's witnesses, he committed an assault with a deadly weapon. Such is the holding of this court in Lockland's case (45 Tex.Crim. Rep.) and others. See Myers v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 432; Ford v. State, 51 Tex.Crim. Rep.; Forrest v. State, 3 Texas Crim. App., 232; Burton v. State, 3 Texas Crim. App., 408.

There is no evidence that the instrument was used otherwise than as a firearm. If it was not in condition to shoot, it devolved upon the appellant to furnish evidence of this fact, it being peculiarly within his knowledge. Cromwell v. State,60 Tex. Crim. 183; Crow v. State, 55 Tex.Crim. Rep. L.R.A. (N.S.), Vol. 21, p. 497; Lockland v. State, 45 Tex. Crim. 87.

If the facts were as claimed by appellant, he made no assault. As we conceive it, the question was not whether the instrument was a deadly weapon in the manner used but whether it was used at all. The charge given, we think, was better adapted to guide the jury in deciding this issue than the special charge requested. If the State's theory was true, there was no occasion to define a "deadly weapon." Martinez v. State, 56 S.W. Rep., 58; Wheeler v. State, 56 Tex.Crim. Rep.; Lofton v. State, 59 Tex. Crim. 270; Kosmoroski v. State, 59 Tex.Crim. Rep.. Under the charge given, unless the State's theory was believed, it was the duty of the jury to acquit. It was not contended that if the instrument was used as the State claims, there was a lack of intent to injure such as would classify the offense as a simple assault. Teague v. State, 84 Tex.Crim. Rep., 206 S.W. Rep., 193; and Hall v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 690 are cases in which there was affirmative evidence that the demonstration made with the firearm was without intent to injure. Such issue is not in the case in hand.

A new trial was sought on the assertion that the verdict was received in appellant's absence. According to the motion and affidavit attached, he attended the trial, but at the time the verdict was received, was outside of the courthouse a few feet from the door. In the order overruling the motion, it is stated that evidence was heard. We have before us no statement of the evidence heard on the motion, and in its absence, must assume that the facts adduced support the court's action. If appellant was voluntarily absent, the court's action in receiving the verdict was justified. Laws of 1907, Chap. 19.

No error appearing, the judgment is affirmed.

Affirmed.

ON REHEARING. November 30, 1921.