Citation Numbers: 3 Tex. Ct. App. 281
Judges: Winkles
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/3/2021
It appears from a bill of exceptions set out in the transcript of the record that, on the trial below, the state’s witness, J. M. Williamson, against whom the offense is alleged to have been committed, testified as follows: “I did hear L. A. Thrasher make a threat two or three months before the difficulty. He said he would mash my head. This was in front of my house, at the wood-pile, and was on Sunday. I told him to leave my place, and in response he told me that he would mash my head if I pestered him.”
The defendant objected to this testimony, and moved to exclude it from the consideration of the jury because irrelevant, and because it related to a transaction wholly discon
The testimony objected to as above, it appears from the statement of facts, was drawn from the witness on cross-examination ; still, if improper, the court should have excluded it. In the case of Longley v. The State, 43 Texas, 490, which was quite similar to the present case, being an indictment under the same statute, Mr. Justice Reeves, in delivering the opinion of the court, says : “ There was no error in admitting proof that threats were made on different occasions, leaving the jury to assess the punishment for only one offense and one violation of the statute.” See 1 Greenl. on Ev., sec. 53.
We are of opinion the evidence was admissible as tending to show the intent of the accused and the state of his mind toward the person threatened; but the other testimony was so clear as to the threat that it is not believed this evidence could have had any material effect on the verdict. Aycock v. The State, 2 Texas Ct. App. 381.
The following special charge was asked by the defendant, and was refused by the court: “In considering the evidence of the attempt, if there be any, you will only consider it with reference to threats made before, not after, the attempt. The attempt must be considered exclusively with reference to previous threats. And should • you find there were no previous threats, then you cannot consider the evidence of attempts, in considering the case against the defendant.’ ’
One portion of the general charge is set out in the assignment of errors, and complained of in the brief of the appellant. Before giving the instruction complained of, the court had instructed, and properly, as we think, to the effect that “ a threat to kill another, unless the party threatened would do or leave undone something he had no right to require, is in its legal effect an unqualified threat, and such as comes within the provisions of the statute.” This charge is followed by that set out in the second assignment of errors.
Considering this instruction with reference to its relative position in the general charge, we can look upon it in no other light than as an example, or an apt illustration, of the principle by which it is immediately preceded — that is, that a threat to take the life of the person threatened, unless he should do or leave undone something he had no right to require, is in law an unqualified threat.
That portion of the charge objected to and set out in the third assignment of errors is not liable to the objection taken. If we are to take up detached portions of a charge, in any case, and undertake to give it an interpretation by itself, we would rarely find a charge, in any case, free from liability to criticism; but this we are not authorized to do. The rule is that a charge must be treated as a whole, and every portion be construed with reference to every other portion, and if the charge, as a whole, places before the
Other objections are urged in argument. One is that the grand jury was not sworn, and another is that the verdict of the jury was not properly returned into court. These objections are not sustained by the record.
The indictment is sufficient. The charge of the court is a clear exposition of the law of the case as made by the evidence. There is a sufficient amount of legal evidence to support the verdict. There is nothing apparent in the record, as suggested in the brief of the appellant, to authorize this court in disturbing the judgment, and it is affirmed.
Affirmed.