DocketNumber: No. 17021
Citation Numbers: 127 Tex. Crim. 574, 77 S.W.2d 660
Judges: Hawkins, Lattimore
Filed Date: 11/21/1934
Status: Precedential
Modified Date: 1/13/2023
Conviction is for assault to murder without malice, punishment being assessed at two years in the penitentiary.
The injured party (Manuel Bosquez), appellant and most of the fact witnesses testified through an interpreter, the result being that in some particulars the evidence is somewhat confusing, but as we understand it the case on the facts may be briefly stated as follows. The assault occurred on the night
In order to present the issues raised by the evidence the trial judge found it necessary to submit the case to the jury in a charge which occupies eleven pages in the transcript. The charge was not excepted to but eight special charges were requested. The court properly refused the first one which was a peremptory instruction of acquittal. The others were refused because they were thought to be covered in the main charge. All of the special requested charges have been examined in the light of the instructions given. It would extend this opinion unduly to set out the special charges or discuss them separately, but we conclude that the court’s charge sufficiently covered and presented the issues to which the special charges related. We observe that most of the special charges would have told the jury that “if you believe there is evidence tending to show, etc.” Such a charge seems improper. There might be some
Bill of exception number one shows that while the sheriff was testifying he described a little knot and a skinned place which were on appellant’s face at the time of his arrest. He was asked by appellant’s counsel if appellant told witness how the wound was received. The State objected that the answer would be self-serving, as there was nothing to bring the statement within the rule of res gestae. The bill is incomplete in that it fails to show what answer was expected from the sheriff to the question asked. See Branch’s Ann. Tex. P. C., sec. 212, and authorities cited. Also, 4 Texas Jurisprudence, sec. 221, p. 323, and authorities annotated.
Bill of exception number two brings forward complaint that in the cross examination of appellant as a witness in his own behalf he was asked by the district attorney, evidently for the purpose of impeachment, if he was not the same man who had been indicted in the District Court of Val Verde County “seven years ago this month for murder,” and over objection appellant answered “Yes, sir.” The only objections were that the same was immaterial, irrelevant and had no bearing on the case. The district attorney then followed with this question: If appellant was not the same person who had been indicted and convicted in the United States District Court at Del Rio eight years ago for the offense of “transportation and concealing” of intoxicating liquor. Appellant’s counsel objected to that question as follows: “We object to this and also the other because it is too remote, and there is no connection between this offense and the others charged, and no evidence tending to show whether or not the man had changed his ways since the indictments and conviction.” The learned trial judge sustained the objection to the second question and appellant was not required to answer it, the court appearing to be under the impression that the question relating to the transaction eight years before the present trial was about a matter which was too remote. The record shows that appellant was thirty-two years of age at the time of this trial and was therefore twenty-five years of age at the time he was indicted for murder. The assault for which he is now upon trial occurred about four years after the indictment had been returned against him for murder in the former case. The inquiry with reference to the indictment for murder was regarding a transaction which was
Bill of exception number three brings forward complaint because the court did not permit the witness Pedro Hernandez .to be asked a question the purpose of which was to lay a. predicate to impeach him. The bill seems to be without merit for two reasons; first, it is incomplete because it does not set out what answer was expected of the witness Hernandez regarding the matter, and also because it seemed to be an effort to impeach him upon an immaterial matter.
Bill of exception number four appears to be only the formal reservation of exceptions to the court’s refusal to give the special charges which were requested. The action of the court in regard to that matter has been heretofore disposed of.
The judgment is affirmed.
Affirmed.