Scott v. State , 46 Tex. Crim. 315 ( 1904 )

DAVIDSON, Presiding Judge.

From a conviction of assault with intent to murder with the minimum punishment appellant has prosecuted this appeal. The evidence discloses that a short time prior to the difficulty a notice had been posted on the door of Dr. Cox ordering him to leave the country. There was a meeting of some of the citizens in regard to this notice a few days prior to the trouble resulting in this conviction. Chandler, the alleged assaulted party, disclaimed placing his name on the notice posted on the door of Cox’s office. These matters brought about rumors and reports of anticipated trouble. On the day of the shooting Cox and appellant were at a blacksmith shop, Cox having his horse shod. Chandler and Jones were approaching the shop, Chandler being armed. When Chandler was within from 125 to 200 yards of the shop, Cox became uneasy, stepped out, got behind a tree, and the shooting began between Cox and Chandler. At this time appellant was standing in the door of the blacksmith shop, having a shotgun. The State’s testimony shows that he fired from the door of the shop, and then went out, got behind a tree, from where he fired other shots at Chandler. ■ Appellant introduced evidence disproving these facts, showing that he did not fire either from the shop or the tree, but in fact remained in the shop during the shooting between Cox and Chandler, and in no way engaged in it.

The law applicable to assault to murder and aggravated assault was given in the charge of the court. Exception is reserved to that portion of the charge which undertakes to define a deadly weapon, which “is a gun within carrying distance.” We ar^e referred to the cases of Julev v. State and Morris v. State, 8 Texas Ct. Rep., 378, 45 Texas Crim. Rep., 391, in support of this phase of the charge. This was held correct in-those cases under the peculiar facts detailed in each. In each of these cases the assailant shot his antagonist at close range, one with a shotgun and the other with a pistol. So there was no question that the assailant in each case was near enough to and did inflict serious bodily injury. There was no probable injury in either case by reason of the charge; and in each decision the charge was upheld under the facts stated therein. But in the case in hand the witnesses place the distance at 125 to 200 yards, and appellant’s testimony shows his gun was loaded with bird or squirrel shot. Under the facts of this case the chafge is incorrect. It is possible that the shotgun might carry bird shot at 125 yards, but is barely probable, and it is not possible that any serious injury could have been inflicted at that distance with that character of shot. There is no testimony tending to show that any serious bodily injury could have been inflicted at that distance. While it is true if Cox shot with a weapon which could have inflicted death or serious bodily injury, and appellant acted as principal in the transaction, he might be chargeable from that theory with an assault with intent to murder, if Cox was guilty.

Appellant’s testimony is positive and direct that he did not aid Cox in any manner and did not fire the gun, and had no connection with the difficulty except as a bystander. Exception was reserved to the charge, because the law applicable to this phase of the testimony was not given. This omission is error. If appellant was simply present and. witnessed the shooting between the parties, if it be conceded that Cox was guilty, appellant would not be guilty unless he made himself a principal to the transaction. Under his testimony this was not the case, and the jury should have been instructed under this state of case in a. positive and affirmative charge that under his facts he would not be guilty.

There are some questions raised on the motion for new trial as to newly discovered testimony. It is not necessary to discuss this, as the witness can be had before the jury on another trial.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.