Porter v. State , 60 Tex. Crim. 588 ( 1910 )

By information filed in the County Court of McLennan County appellant was charged with an aggravated assault upon one J.A. Tilley. The grounds of aggravation were, first, that serious bodily injury was inflicted upon Tilley; second, that the assault was inflicted with a deadly weapon, and, third, that he was at the time an officer in the discharge of his duty, of which appellant had been informed, and which she knew at the time of said assault. On trial she was found guilty as charged, and her punishment assessed at a fine of $50 and three months confinement in the county jail.

The facts are in some confusion, and there is an irreconcilable conflict between the testimony of the witnesses for the State and for the defendant. It is shown by the testimony, however, of all the witnesses that on the night in question, a few minutes before the assault charged, that there had been a controversy between appellant and one Sparks, also an officer, in which, under some of the testimony, Sparks was the aggressor. Practically all the testimony, however, shows that the controversy with Sparks had ended, that appellant had moved some considerable distance from the place where such difficulty occurred, and that McGinty, who was with her at the time, and over whom the controversy between herself and Sparks had arisen, had left and was not present at the occurrence of the events forming the basis of the prosecution. Tilley testified that when he accosted appellant she had a large knife open in her hands, and was threatening to cut some white man, and was cursing and swearing, and using offensive and belligerent language, and that he sought to take the knife from her, advising her of his official position; that she declined to give up the knife, undertook to cut him, and that in endeavoring to arrest her and prevent injury to himself he struck her, and that she returned the blow, cutting him in the eye and cheek.

1. The court gave, as far as it went, a correct charge. This was supplemented by seven special charges given at the request of counsel for appellant in which practically every issue arising in the testimony was submitted in a manner most favorable to appellant. We find in the record a number of special instructions — seven in number — which do not appear by endorsement of the county judge to have been either given or refused. There is in the record a marginal entry that would suggest that these charges were refused, but they are in no manner authenticated as refused by the court. As was said in the case of Smith v. State, 27 Texas Crim. App., 50: "It is a rule of practice in this State that special instructions, whether given or refused by the trial judge, must be authenticated by his signature, and if the record fails to show that such instructions were refused the Appellate Court will presume that they were given." Jeffries v. State, 9 Texas Crim. App., 598.

2. We find in the record a number of bills of exception to the exclusion of evidence, some of which we can not consider for the reason that they do not distinctly set out what the answers of the witness would have been. It is well settled in this State that where the bill of exceptions does not state the answer or the expected answer of the witness with reference to the excluded testimony, the same can not be considered. Roberson v. State,53 Tex. Crim. 297; White v. State, 32 Tex.Crim. Rep.; Childress v. State, 37 Tex.Crim. Rep.; Bailey v. State,37 Tex. Crim. 579; Adams v. State, 35 Tex.Crim. Rep.; Rodgers v. State, 34 Tex.Crim. Rep.. Some of the bills are sufficiently definite, however, to be excepted from this rule, but all of the testimony so offered relates to occurrences in the controversy with Sparks or to conduct of the witness Tilley after the assault upon him and having relation to a subsequent plea of guilty on the part of appellant for disturbing the peace. This testimony was offered as tending to show motive, interest and bias, and was probably admissible for this purpose, but in view of the unquestioned attitude of the witness we think could have added little, if any, weight to his evident hostility to appellant, and if admitted the testimony could not have changed the result.

3. On the trial an application was made for continuance on account of the absence and for the lack of the testimony of Garfield Lander. The testimony of this witness relates to matters occurring in the controversy with Sparks, which preceded the assault which is the basis of this prosecution. We do not think that this was a matter of such importance as would have justified or required the court to have continued the case.

4. As we have stated, there is a decided conflict in the testimony. If the evidence of the State witnesses is to be conceded to be true, it can not be doubted that the State has made out a case. If the testimony of appellant is true, the conviction is an outrage, and the conduct of Tilley and others with him yet more unwarranted and unwarrantable. The jury on a fair submission, however, has seen proper to credit the testimony of the State, and we do not believe, as presented, we would be authorized to interfere.

Finding no error in the record, it is ordered that the judgment of conviction be and the same is hereby in all things affirmed.

Affirmed.

ON MOTION FOR REHEARING. Decided December 21, 1910.