Leaks v. State

Conviction for assault with intent to murder; punishment, three years in the penitentiary.

We find in the record but two bills of exception, the first of which complains of the overruling of an application for continuance. The application is manifestly insufficient. It is not shown by the bill that any diligence was used. It is merely recited that application for subpoena for the absent witness was made on September 22, 1934, and was addressed to Austin County, Texas, where the appellant believed the witness resided, — coupled with a statement of what appellant expected to prove by said witness. The trial of this case occurred September 25, 1934, and according to the caption of the transcript the trial term began on the 3rd day of September, 1934, and adjourned on the 13th of October following. The indictment was returned September 10th. No reason or excuse is stated for not having sooner procured process for the witness Hogan. Nor is there any statement or showing as to what was done with the process such as is held necessary under all of our authorities. See Branch's Annotated P.C., p. 187, for collation of authorities holding it necessary to show in the application what was done with the process. Among the cases cited will be found Barrett v. State, 18 Texas App., 67; Weaver v. State, 34 Tex.Crim. Rep.; Clark v. State, 57 Tex.Crim. Rep.. In oral presentation of this case before us counsel for appellant called attention to the fact that upon a hearing before the court testimony was given regarding the facts we have just adverted to. In Mr. Branch's Annotated P.C., sec. 213, p. 137, many authorities are collated holding that the statement of facts will not ordinarily be looked to in aid of a bill of exception. Cases cited are Burt v. State, 38 Tex.Crim. Rep.; Reys v. State, 45 Tex. Crim. 464; Lucas v. State, 49 Tex.Crim. Rep., and others. The learned trial judge nowhere refers this court, in his qualification to the bill of exceptions, to any part of the statement of facts.

The other bill of exceptions complains of the refusal of a special charge, in effect, that the jury should believe that appellant had the specific intent to kill before they could convict him for assault to murder. Examination of the main charge of the court reveals the fact that he therein told the jury that they could not convict this appellant unless he entertained the specific intent to kill at the time he assaulted the injured party.

The facts before us seem to amply justify the jury in their conclusion of guilt. There is no dispute of the fact that appellant with a shot-gun fired at and wounded the injured party, the shooting being at close range. Appellant defended upon the proposition of self-defense, he claiming that the injured party was attacking him with a knife. The State supported its claim that the assault was not in self-defense by the testimony of a number of eye-witnesses. Appellant seems to stand alone in his own assertion of self-defense.

The sentence takes no notice of the indeterminate sentence law. Same will be reformed so as to direct that appellant will be sentenced to confinement in the penitentiary for not less than one nor more than three years.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.