Sullivan v. State

Appellant was indicted for an assault with intent to murder one T.G. Beaty, and was sentenced to two years in the State penitentiary, from which judgment he appeals.

1. Appellant complains that the court erred in allowing testimony of a previous difficulty between appellant and T.G. Beaty to be introduced upon the trial of this case. Antecedent menaces, quarrels, and grudges may always be shown to prove malice. Anderson's case, 15 Texas Ct. App. 447[15 Tex. Crim. 447]; McKinney's case, 8 Texas Ct. App. 626[8 Tex. Crim. 626]. The testimony of the former attempt upon the life of Beaty only the day before the present assault with intent to murder was committed, was certainly admissible to throw light on the acts of defendant, and prove motive. Carr v. The State, 41 Tex. 543. There were no special charges asked, nor exceptions reserved to the general charge for not limiting the effect of the testimony to the proof of motive only, and we can not see how any injury was caused by the failure of the court so to charge, as we see no reason for believing the defendant was convicted for the first assault.

2. The appellant complains the court erred in using the expression in his charge, that "if the jury believed that defendant sought Beaty for the purpose of bringing on a difficulty," without explaining what kind of a difficulty. While it may not be clear what point is referred to in the expression, "but upon this point," yet we think the proposition contained in the charge is not only correct, but applicable. The court, in substance, charged, that if defendant brought on and began the difficulty, he could not justify his attempt to kill Beaty on the ground of self-defense; for although defendant began the difficulty, with no intent to kill or to do bodily injury to Beaty, yet, if afterwards, in the course of the difficulty, he found it necessary to kill him to save his own life, he can not justify his act by claiming it was done in self-defense. White's case, 23 Texas Ct. App. 154[23 Tex. Crim. 154]; Lilly's case, 20 Texas Ct. App. 1[20 Tex. Crim. 1]; Thuston's case, 21 Texas Ct. App. 245[21 Tex. Crim. 245]; Gilleland's case,44 Tex. 356.

3. Neither do we see any error in the qualification of the special charge asked by the appellant. The court, at the instance of defendant, charged the jury, that upon the question of self-defense the facts must be viewed from defendant's standpoint, and if, when defendant shot, he had reason to believe Beaty was about to shoot him, the jury should acquit. The court properly qualified this charge by adding that it was to be considered in connection with subdivision 2 of the charge referred to above, to the effect that if defendant brought on the difficulty, he could not claim self-defense.

4. Appellant claims that the evidence is insufficient to support the verdict. We can not agree to this view of this case. The record shows that appellant was the aggressor all through the difficulty, which seems to have continued for several days. When he saw Beaty sitting with his gun upon the wagon he rode back on no peaceful mission. True, he was singing, but was armed for the fight. Claiming that Beaty had changed the position of his gun, which Beaty denied and disclaimed, he leaped from his horse, and drawing his pistol, told him to come from behind the wagon and he would fill him with shot; and the fight began, both parties firing. While Beaty was fixing his gun, which had hung fire, appellant remounted, and rode close up to him and fired. The evidence, we think, is sufficient to sustain the verdict, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.