DocketNumber: No. 1228.
Citation Numbers: 38 S.W. 1013, 37 Tex. Crim. 156, 1897 Tex. Crim. App. LEXIS 50
Judges: Henderson
Filed Date: 2/10/1897
Status: Precedential
Modified Date: 10/19/2024
Appellant was convicted of an assault with intent to murder, and given two years in the penitentiary. The prosecutor, B.F. Conn, and his wife, who resided in Houston, Texas, had been on a visit to Dexter, in Cooke County, and, on their way to Houston, were waiting at the depot in Sherman for the train. Conn went to the saloon of Peter Fay, and while there defendant and a young man in a buggy drove up. Conn asked them if they knew Dr. Williams. They replied that they might know about him if they had the drinks. Conn set up the drinks, and they told him that Dr. Williams lived in the southeast part of Sherman. Prosecutor then went back to the depot, and he and his wife went off to some point in town, and after some time he came back to Fay's saloon, and saw the defendant there, and told him he had informed him wrong; that Dr. Williams was dead. A quarrel ensued between the parties, and according to the State's evidence the defendant cursed and abused the prosecutor. Prosecutor told him to wait there until he came back, and he went over to the depot, got his pistol, came back to the saloon, and demanded an apology. Defendant said he was joking, and he and Conn made friends, and Conn treated again. Prosecutor then left, and went back to the depot. A short time after that, defendant armed himself with a gun and came over from the saloon to the depot. The prosecutor went into the waiting room, where his wife was (according to his account), and got his pistol, and came out around the northwest corner of the depot. The defendant was at the southwest corner, and, just as prosecutor turned the corner, defendant threw his gun down on him and fired. The prosecutor then shot at defendant with his pistol. It appears that defendant then ran around the depot, and the prosecutor went into the baggage room. Prosecutor went to the north end of the baggage room and opened the door, and at the same time presented his pistol at the defendant, who was standing a little distance off. The pistol snapped, and defendant raised his gun and shot the prosecutor in the face and neck, the shot scattering from the prosecutor's shoulders to the top of his head. The gun was loaded with small shot. Three of the shot went into the prosecutor's eye, and some went through his jaw and knocked out two of his teeth. At the time the shot was fired, defendant was ten or twelve feet from the prosecutor. *Page 158 Witness Peter Fay, for the State testified, that he saw the defendant just before the shooting, come by the saloon, and heard him call out to Conn, and call him a son-of-a-bitch and told him to come over. Conn did not come over. Defendant shook his gun at Conn when calling to him. Defendant then went over towards the depot, and shortly afterwards the shooting began. The testimony of the other, State's witnesses substantially concurs with this testimony. The defendant's witness, Bert Vaden, testified as to the origin of the trouble, in the main, as the State's witnesses. He states that, when Conn came back from the depot the first time after the altercation had occurred between the prosecutor and defendant, he said to defendant: "Yes; you know a great deal about Dr. Williams! He has been dead two months." The defendant laughed and said, "We have got the drinks just the same." Conn then said, "I believe you are nothing but a bumming son-of-a-bitch." Defendant replied that he was no more of a son-of-a-bitch than Conn was. Conn then said, "Wait till I come back," and went away to the depot. He came back in a few minutes, and drew his pistol on the defendant, and called him a son-of-a-bitch, and told him that he had to take back what he said, which defendant immediately did. Conn then told him that he had already put seven sons-of-bitches under the sod, and was ready to put, another there, and didn't know but, what he would do it right then. "Defendant said, 'I have nothing to shoot with.' Conn then told him, 'If you have got any shooting irons, get them in sight quick.' Defendant then said, 'If you will give me a pistol, I will shoot it out with you on any part of the ground.' They talked awhile, and Conn told defendant that, as he had taken back what he had said, that he would take a drink with him. Conn then called for the drinks, and we all drank. Defendant was quite drunk." The gun with which the shooting was done was offered in evidence. It was a small, single-bar-reled shotgun, ordinarily used by small boys for fowling purposes. The proof showed that it was loaded with No. 6 shot. This is a summary of the evidence in the case. The court charged the jury on assault with intent to murder, on aggravated assault, and on self-defense. From the testimony in our opinion, there was no self-defense in this case. The least that can be said is that, if the defendant did not himself provoke and bring on the difficulty, he certainly engaged in a mutual combat and fought willingly. He knew that the prosecutor was armed with a pistol before he so engaged in the difficulty, and he himself was armed with a shotgun. If the prosecutor, Conn, made an assault on the defendant at the saloon, as testified to by one or two of the witnesses, this might constitute adequate cause to arouse the passion of the defendant. But the midisptited proof in the case shows that after this alleged assault the parties made friends, and took a drink together, and the matter was dropped, and the shooting occurred some time after this. However, the court gave a charge on aggravated assault, and certainly appellant as no ground of complaint on this account.
By a bill of exceptions, appellant questions the action of the court in *Page 159
instructing the jury that "a deadly weapon was one which, from the manner used, is calculated or likely to produce death or serious bodily injury." This, as we understand it, is the definition of a "deadly weapon." See, Skidmore v. State,
Affirmed.