Hayes v. State , 171 Tex. Crim. 646 ( 1962 )

353 S.W.2d 25 (1962)

Leon HAYES, Appellant,
v.
The STATE of Texas, Appellee.

No. 34031.

Court of Criminal Appeals of Texas.

January 17, 1962.

No attorney for appellant of record on appeal.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Robert E. Delany, Assts. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The offense is assault with intent to murder without malice; the punishment, enhanced under Art. 63 P.C. by two previous convictions for felonies less than capital, life.

The prior convictions, one for burglary and the other for assault with intent to murder without malice, were proved by certified copies of the prison records, including the judgment and sentence and fingerprints, and the indictments in said causes; and known fingerprints taken by the expert witness who compared them with the other prints offered in evidence and testified that they were prints of the same person, namely, the appellant.

Laura Davis, who lived with her mother and had been going with appellant, testified that he came to her mother's house about 10 P.M. drunk; demanded that she return $10 which he said he gave her that morning; and said "I came to kill you." She offered him $2.00, saying that was all he had given her, and he said "he didn't want the $2.00 * * * he wanted $10." Appellant jerked a pistol from his belt and fired, and she grabbed at and "throwed the gun up and I ran out the door."

Appellant shot again as she reached the gate and she heard the bullet hit the gate. She continued running until she reached a neighbor's house where she remained until the officers arrived.

Martha Tennison, the mother of Laura, testified that appellant told her daughter he had come to kill her and shortly thereafter pulled a pistol out of his belt and shot three times. She testified that one shot struck her in the thigh.

Other evidence showed the gunshot injury inflicted upon Martha Tennison. A statement of Laura, who was not hit, when she arrived at her neighbor's back door in an excited condition, "Leon is trying to kill me" was admitted as res gestae.

Appellant did not testify and offered no evidence in his behalf. No brief has been filed by his counsel.

The indictment alleged an assault upon Martha Tennison with intent to kill her.

The evidence relied on by the state is sufficient to show that appellant fired the pistol with the intent to kill Laura Davis and that one of the bullets struck Martha Tennison.

The court, in his charge, instructed the jury regarding the provisions of Art. 42 P.C. and authorized a conviction upon a finding by the jury that appellant intended to kill Laura Davis by shooting her with a pistol and, in the act of preparing for or executing the same he, through mistake or accident, assaulted Martha Tennison by shooting her with a pistol.

The court did not err in overruling appellant's objection to such submission of the case to the jury. Hodges v. State, 160 Tex. Crim. 579, 272 S.W.2d 902; 1 Branch's Ann.P.C.2d 65, Sec. 70.

The informal bills of exception shown in the statement of facts have been examined and no error appears which would warrant reversal.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.