Jordan v. State

Appellant is under conviction for an assault made while unlawfully carrying a prohibited weapon under Article 1024A, P.C., with punishment assessed at a fine of five hundred dollars.

Omitting the formal parts, the indictment charges that appellant: "— While then and there unlawfully carrying on andabout his person a pistol, with the said pistol did in and upon E.T. Floyd make an assault and did then and there with said weapon so unlawfully carried strike, beat and bruise and wound the said E.T. Floyd. —"

Appellant contends that under the authority of Denton v. State, 76 Tex.Crim. Rep., 172 S.W. 796, the indictment charges no offense and that the trial court was in error in refusing to sustain the motion to quash. The indictment here under consideration may be clearly distinguished from that in the Denton case. There the allegation was only that the accusedunlawfully carried a pistol and no element of the unlawful carrying was set out in the indictment. The omission of the very words which caused the holding of the indictment in Denton's case bad are found in the present indictment, viz: that appellant carried "on and about his person."

Appellant complains of the refusal of the trial court to grant a continuance on account of an absent witness, C.M. Knight. He alleges in his application that Knight, "would testify that he was present and with the defendant at the time of the alleged assault and that the defendant did not make an assault on E.T. Floyd with a pistol or in any manner." It may be seriously questioned whether the application is sufficient in that it fails to set out specifically the facts which the absent witness would testify to, but appear to be mere conclusions and general averments which are not sufficient. (See many authorities cited under the third paragraph of Section 312, Branch's Ann., Penal Code.) It is not necessary however, to dispose of the matter on that ground. The court's qualification to the bill makes it apparent that appellant was lacking in diligence in his efforts to secure the attendance of this witness. The indictment was filed on November 3d, and the case set down for trial on November 20th. Process was issued for this witness on the 15th day of November and served on the 18th. When the case was called on November 20th it was postponed until December 11th. The witness Knight was not present at the time the case was called on November 20th and no fields in the State of Arkansas and had been for several weeks prior diligence whatever is shown to secure his attendance since that time. The proof shows that said witness is absent from the State in the oil to the time this case was tried.

Bills number three and four present no error and we think it unnecessary to discuss them. We are at a total loss to understand appellant's bill of exception number five. It makes reference to something appellant told one Luckett, and that Luckett would have testified to certain facts. Whatever the complaint is about it occurred while Pauline Levy was being examined as a witness. So far as the record shows Luckett was not a witness in the case at all. The bill as we find it in the record presents no matter of which we can take cognizance.

The remaining bills complain of the refusal of the court to charge with reference to appellant's claim that he was not unlawfully carrying the pistol at the time of the alleged assault. The merit, or otherwise, of this contention must be determined by the facts. Floyd was constable. His testimony in substance was that he had followed a negro whose conduct was suspicious into the vicinity where the assault was committed; that he heard some one cursing and making threats about the officers and saying to some one, "go ahead and call the officer;" that it was dark, being about nine o'clock at night; that the party doing the cursing was on the porch at Eva Davis' house; (it was shown that Eva Davis' house bore the reputation of being a disorderly house, as did others in the immediate locality); that he went to the house and found two men beside appellant there, and upon inquiring what they meant by their conduct appellant stepped back from the door with a pistol in his hand; that appellant was very drunk; that Floyd tried to get him to go away and after some words between them one of the men with appellant held the officer's arms while appellant struck him in the face with the pistol. The officer was supported by the testimony of Pauline Levy as to the assault, and the boisterous conduct of appellant. The blow caused considerable flow of blood. Floyd telephoned for other officers and appellant was arrested some thirty minutes later in the house of Nezzie Baker about two blocks from the scene of the assault. He was very drunk and cursed the arresting officer whom Nezzie Baker requested to get appellant out of her house.

Appellant and his witnesses denied in toto the assault. He claimed the pistol belonged to the sheriff, and that he had taken it to the sheriff's office to leave it, but no one being there he was taking it home, and had gone to the oil mill to see a negro and was returning to his car when the trouble arose. The evidence shows beyond dispute that appellant was drunk and going from place to place in the disreputable part of the city raising trouble and making disturbance with the unfortunate women residing there. To our minds the evidence did not raise the issue that appellant was on a bona fide journey home with the pistol, and no charge upon that issue was called for.

The judgment is affirmed.

Affirmed.

ON REHEARING. November 28, 1923.