Crass v. State

DAVIDSON, Judge. Appellant was convicted of an assault with intent to murder one Walden, alleged to have been committed in March, 1891. In the summer of 1891 he had been convicted of a similar assault upon the same party, which had occurred in December, 1890. Over appellant’s objection, the prosecution was permitted to prove on the trial of this cause the prior assault and former conviction. In this case the State relied on circumstantial evidence. The evidence objected to was admitted to prove motive and ill will. Where a crime has been committed, and the circumstances point to the party on trial, charged with such crime, any fact tending to show him to be the perpetrator of the offense is admissible to prove motive, even though such fact or circumstance be remote; and it is competent to prove acts of the accused occurring prior to the assault under investigation when the acts themselves, taken in connection with other facts or circumstances, prove or tend to show the animus of the accused towards the assaulted party. Willson’s Crim. Stat., secs. 1043, 1044. Appellant, at the date of the assault charged in this case, was under indictment for the former assault upon Walden, alleged to have been committed the previous December, which indictment was presented in court on February 19, 1891, less than one month prior to the assault charged in this case; and Walden was the principal witness for the State in that case. It was clearly permissible for the prosecution to prove the former assault, as well as the indictment predicated thereon. Dubose v. The State, 13 Texas Ct. App., 418; Taylor v. The State, 14 Texas Ct. App., 340; Powell v. The State, 13 Texas Ct. App., 244; Robinson v. The State, 16 Texas Ct. App., 347; Kunde v. The State, 22 Texas Ct. App., 65; Rucker v. The State, 7 Texas Ct. App., 549; Howard v. The State, 25 Texas Ct. App., 686; Anderson v. The State, 15 Texas Ct. App., 447; Johnson v. The State, 29 Texas Ct. App., 150; Brunet v. The State, 12 Texas Ct. App., 521; Blackwell v. The State, 29 Texas Ct. App., 195; Carr v. The State, 41 Texas, 543. The record of appellant’s conviction in the former case was also offered in evidence by the State, and objected to by appellant. The objections being overruled, appellant’s counsel stated to the court that if the record was admissible, the State could prove the conviction without the necessity of reading the record to the jury, reserving his objections to the *315 evidence because it was, in any form, inadmissible. That this testimony was admissible as tending to prove motive is, we think, hardly an open question in this State. Johnson v. The State, 29 Texas Ct. App., 150; Brunet v. The State, 12 Texas Ct. App., 521; Whart. Crim. Ev., sec. 602a. “A prior judgment may also be admissible as part of the evidence on which the case for or against the appellant may be made out. * * * It may be relevant, also, to prove a former offense committed by the defendant as part of the system of crime of which the offense under trial is another part. If so, it is admissible to put in evidence the defendant’s conviction of the former offense. * * * And a record of conviction of defendant in the same jurisdiction, being an adjudication in which the same parties were litigant, may be conclusive when showing a relevant fact.” Whart. Crim. Ev., sec. 102a; Commonwealth v. Evans, 101 Mass., 25; Commonwealth v. Feldman, 131 Mass., 588. This court said in Johnson’s case: “ It was not error to admit in evidence against the defendant the indictments and records mentioned in defendant’s bill of exceptions. This testimony was admissible to show motive for the commission of the murder, and to this purpose the testimony was restricted by the charge of the court.” Johnson v, The State, 29 Texas Ct. App., 150. Inasmuch as the appellant neither requested a special instruction nor excepted to the charge given in relation to accomplice testimony, we do not think, under the facts of this case, the evidence leaving it so very doubtful as to whether there was an accomplice, the judgment should be reversed because the word “accomplice” was not fully defined as understood in its broadest sense under article 741 of the Code of Criminal Procedure. Timbrook v. The State, 18 Texas Ct. App., 1; Zollicoffer v. The State, 16 Texas Ct. App., 312; Burke v. The State, 15 Texas Ct. App., 156. The judgment is affirmed. Affirmed. Judges all present and concurring.