Leonard v. State

In appellant's motion we are again referred to Calvert v. State, 75 Tex.Crim. R., 170 S.W. 744. It is contended that upon the facts said case is so similar to the present one as to be controlling. The facts are in a general way very much like those shown in this record. However, some differences appear. Calvert struck in anger after having been called a "G__ d___ liar" by the party he hit. It is said in the opinion in Calvert's case:

"It would be straining the facts beyond any legitimate conclusion to hold that appellant contemplated that he (the injured party) would strike either the auto or the curbing, or that he even would fall, as the witnesses testified the blow was light."

In the present case describing the blow a witness said:

"It was a good, hard blow and it struck the elderly man on his left temple. * * * When this blow was struck the elderly man whirled around and fell down."

It is impossible for us to know how the different phases of the Calvert case were submitted. As against appellant's urging that we should hold the evidence in the present case insufficient to show more than a simple assault we are confronted with the jury's finding on that issue submitted in appellant's special charges which were evidently drawn with exact understanding of the principles of law discussed in Calvert's case. The special charges are as follows:

"If you find and believe from the evidence that the defendant James Leonard, intended to strike Philo Eads and did strike him with his open hand or empty fist, not in his necessary self defense, but you further find that the serious injury inflicted upon said Philo Eads, if such injury was inflicted upon him, was not the natural and probable result of the blow so struck, by defendant, and was not the contemplated or intended result of the blow so struck by the defendant or the serious injury resulted from a blow on the head of the said Philo Eads by reason of his head's coming in contact with a post, sidewalk, or curbstone or other article unknown to the defendant, and that the injury was not the natural and probable result of the blow from the fist or hand of defendant, or if you have a reasonable doubt thereof, then I instruct you that the defendant would not be guilty of aggravated assault."

"Where an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting such injury to show accident or innocent intention.

"Now, therefore, if you find and believe from the evidence that serious bodily injury was inflicted upon the said Philo Eads, but you further find and believe, or if you have a reasonable doubt thereof, that such injury was inflicted accidentally, or that defendant James Leonard, inflicted serious bodily injury upon the said Philo Eads, but that defendant did not intend to seriously injure him, I instruct you that defendant would not be guilty of aggravated assault."

"If you find and believe from the evidence that defendant, James Leonard, intended to strike Philo Eads and did strike him with his open hand or empty fist, not in his necessary self defense, but you further find that the serious injury inflicted upon the said Philo Eads, if such injury was inflicted upon him, was not the natural and probable result of the blow so struck by defendant, and was not the contemplated or intended result of the blow so struck by defendant or if you have a reasonable doubt thereof but the serious injury resulted from a blow on the head of the said Philo Eads by reason of his head's coming in contact with a post, sidewalk, curb or stone or other article unknown to defendant, then, I instruct you, that defendant would not be guilty of aggravated assault."

We cannot set aside the verdict without substituting our own opinion upon a question of fact for the finding of the jury upon the identical issue fairly submitted. This we have no right to do.

Appellant's motion for rehearing is overruled.

Overruled.