Shoffitt v. State , 128 Tex. Crim. 486 ( 1935 )

CHRISTIAN, Judge.

The offense is assault with intent to murder; the punishment, confinement in the penitentiary for two years.

The trial was had in Hall County on a change of venue from Donley County.

It was charged that the assault was made on Guy Pierce. Pierce, who was sheriff of Donley County, testified, in substance, as follows: On the night of December 31, 1933, he observed a car with one light drive to appellant’s home. Accompanied by Guy Wright, a deputy sheriff, he drove to the point where the car parked for the purpose of advising the occupant to fix his light. After parking his car he and Wright went to appellant's yard fence. He heard appellant and Bill Lott talking about whisky. As Lott was leaving the house he said to appellant: “I will be back after some more of this stuff in the morning.” When Lott got outside the witness found a pint of whisky in his possession. He appeared to be intoxicated. Appellant came to the door and the witness asked him where his whisky was located. Appellant replied that he had no whisky, and invited the witness to search his place. He found a small bottle of whisky and seventy-five or a hundred empty fruit jars. He told Lott to go home. Lott requested that he return his whisky. He told him that he was going to deliver it to the grand jury and tell them what he had heard. As the witness and Guy Wright started toward their car the witness heard a noise. Looking around, he saw appellant advancing with a shotgun. The witness hollered to Wright that appellant had a gun. Wright said something to appellant and appellant brought up the shotgun and shot at him and the witness. They returned the fire. Wright was wounded and fell to the ground. The witness picked Wright up and started toward the car. Appellant again opened fire on them with a six-shooter and a rifle. As they got in the car he fired one shot through the door. Appellant was wounded in the arm.

Appellant testified that he was a veterinarian; that on the occasion of the visit of the sheriff to his place he (appellant) and Bill Lott were talking about some medicine which he (appellant) used in his profession; that Lott had a small bottle of whisky; that as Lott started to leave he (appellant) observed someone behind his car; that the sheriff and his deputy jumped out and searched Lott; that they then jumped on him and shoved him through the door into his house; that after entering the house they took his guns from under his pillow where he kept them; that they then instituted a search, telling him that they wanted his whisky; that he showed them about two-thirds of a pint which was all the whisky he had; that he did not give his consent for them to make the search; that they had no search warrant; that they finally left the house but in a short while came back towards it; that he armed himself for the purpose of preventing them from re-entering his house, and ordered them to leave; that the sheriff then ordered his deputy to kill him; that the deputy immediately fired at him; that he saw that they meant to kill him, and returned the fire; that both the sheriff and his deputy were firing at him at the time; that one of the shots took effect in his arm.

We deem the evidence sufficient to support the conviction.

No bills of exception are brought forward and no exceptions were interposed to the charge of the court. The only requested charge appellant sought was submittéd to the jury.

The judgment is affirmed.

Affirmed

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.