Foster v. State , 39 Tex. Crim. 399 ( 1898 )

HERDERS OR, Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years confinement in the penitentiary; hence this appeal.

On the trial the State introduced Ben Robinson as a witness. Appellant objected to his competency, and introduced against him the record of two convictions, both in the District Court of Fort Bend County, and both for the theft of a mare. One cause (Ro. 1813) in which witness was convicted and given five jrears in the penitentiary, and on the final sentence notice of appeal was given. This conviction bore date May 16, 1884. The other (No. 1890) in which witness was convicted and sentenced for five years in the penitentiary, and gave, notice of appeal. This-bore date April 6, 1886. The State, in order to qualify said witness, introduced a pardon by the Governor of the State of Texas, and which pardon, recited that it was on account of a conviction at the March term of the District Court of Fort Bend County, 1886, for the theft of a mare, and showed that he had served his term of five years. Said pardon was granted, restoring to him the rights of citizenship. Appellant, however, still claimed that the witness was not qualified to testify against him, because no pardon was shown to have been extended in cause No. 1813,— the conviction in 1884. The court overruled this objection, on the ground that the witness Robinson had given notice of appeal in said cause No. 1813, and that, until the appellant showed a final conviction in the court of appeals, said witness was competent to testify. This view appears to> be in accord with the opinion of this court in Jones v. State, 32 Texas Criminal Reports, 135, holding that the burden was on the State to show that the witness was incompetent to testify, and that the exhibited record of his conviction was not a final conviction,—did not make a convict; that it showed on its face that he prosecuted an appeal to the Court of Appeals, and the judgment of the lower court could be reversed and remanded, or dismissed, or could be affirmed. If reversed and remanded, or dismissed, there is no question but that the witness would have then been qualified, and only in the event of an affirmance of the judgment and sentence of the lower court was he disqualified to testify. This record evidence should have been produced by the appellant. We would observe, in this connection, that this trial was in the same court in which the conviction of the witness had occurred, and it seems to us that it would have been a very easy matter to have settled this question by producing the-mandate of the Court of Appeals.

Appellant objected to certain witnesses testifying that appellant assaulted the prosecutor, Ben Robinson, with an axhandle, on the'ground that the specific means of assault set out in the indictment did not allege an assault with an axhandle. This testimony was admitted as a part of the res gestae of the offense alleged in the indictment, and as evidence tending to show the intent of the appellant in making the assault by the use of the means set out in the indictment. We think this was correct. The court adequately instructed the jury on this point, both at the time the testimony was admitted and in his charge. .The jury were told that they could only convict appellant, if at all, for the assault made with the weapons or instruments set out in the indictment.

The most serious question in this case is whether the evidence is sufficient to support the conviction. The indictment alleges that the assault with intent to’murder was made by cutting said Ben Robinson with a knife, and with a sharp instrument, and by striking him with a piece of iron. The proof utterly fails to show any assault or beating with a piece of iron, and, if the conviction can be permitted to stand at all, it is on account of the alleged cutting with the knife or some sharp instrument. Now, the only cutting shown is the cutting off of a portion of the sldn of the prosecutor’s penis with a knife, the appellant declaring at the time that he was going to “cut his p—k off.” Now, if we take this proof standing alone, it would appear to negative the idea that he intended to kill him. If he had desired to do that, he could as well have stabbed him as not; for there is no question that he had the means, coupled with the ability, to do so. But he expressly declares his purpose, in connection with his act, which fails to indicate an intent to take his life. If this cutting was anything more than an aggravated assault, it was not with intent to murder, but with intent to maim or disfigure. If we recur to other portions of the testimony, showing what appellant did on that occasion besides the cutting, the evidence serves to still further negative the idea to take life. True, the witness Robinson says that appellant stated he was going to kill him,—was going to take his life by slow death; yet we are not to judge appellant alone by what he said on that occasion, but by what he did as well as by what he said. Appellant was armed with a gun, and his son, accompanying him, was also armed. According to the State’s testimony, they drew and presented their guns on prosecutor. He testified that they could have shot him if they had desired. He also testified that they beat him unmercifully with an axhandle. We have seen before, however, that he could not be convicted for an assault with intent to murder by either the axhandle or the guns, unless the guns had been used as clubs, and they were not, because the assault was not alleged to have been committed with these instruments, and this evidence was only adduced in order to show the intent of the appellant in making the assault and battery with the knife. We have already seen that the assault with the knife was not with intent to take life, but with another intent; and the fact that on that occasion appellant and his son had deadly weakons, to wit, guns, with which they could have readily slain the prosecutor, it occurs to us is pregnant evidence that they did not intend by what they did to take his life. Because, in our opinion, the evidence is wholly insufficient to support the verdict, the judgment is reversed and the cause remanded.

Reversed and remanded.

Hurt, Presiding Judge, absent