Crist v. State

Hurt, Judge. The conviction in this case was for an assault with intent to murder. It is insisted that, as there was evidence tending to prove that appellant acted in self defense, the court erred in not properly defining an assault, so that the jury could properly understand that portion of the charge in which the jury were instructed: “If you believe from the evidence that [366] defendant did commit an assault upon said Smith, yet, if you further believe from the evidence that at the time said Smith was making an assault upon the defendant, or if it reasonably appeared, etc., then you should acquit.” The objection to the definition is that it omits “any threatening gesture.” There was no objection to this omission. There was no charge on manslaughter, nor on mutual combat; nor was such charge requested, nor objections taken to the charge because of these omissions. Now, with reference to these omissions in the charge, being for the first time called to the attention of the court in a motion for new trial, the rule is that this court will look to the whole record, and, unless the errors were probably calculated to injure the rights of appellant, will not reverse. Looking, therefore, to the statement of facts and to the charge of the court as a whole, if errors, they were not such as would probably injure appellant’s rights. It appears that, on the day before this, Smith, the prosecutor, and one Mrs. Anderson had a very bitter quarrel, and that Smith told her that if she would send her man over he would settle the matter with him. The difficulty between Smith and appellant occurred next morning near Mrs. Anderson’s house. Appellant lived with Mrs. Anderson, and had, no doubt, been informed of what Smith had said to Mrs. Anderson about sending her man over. Now, when Mrs. Anderson was on the stand for defendant, having testified to the facts and circumstances attending the rencountre, and very favorably to defendant, the district attorney, upon cross-examination, asked her if she was not separated from her husband, and if defendant was not living in the same house with her; to which, defendant objected because irrelevant and incompetent. The objection was overruled, and the witness answered said questions in the affirmative. Under the circumstances of this case, these questions and the answers thereto were competent. Mrs. Anderson was a very important witness. She swore to facts clearly exonerating appellant, and the State had the right to show the relations existing between her and defendant, in order to show her bias and motives, which may have explained her testimony. In the statement of facts J. E. Peacock’s name appears as a witness for the State, but it appears from his affidavit that he was not a witness in the case at all. We cannot inquire into [367] this matter; the certificate of the trial judge is conclusive. (Rainey v. The State, 20 Texas Ct. App., 473.) Opinion delivered May 25, 1886. We do not take the same view of this case as is entertained by counsel for appellant. To our minds this is clearly a case in which the defendant provoked the combat,—produced the occasion which brought about the difficulty—such a difficulty as would end in the death of one or the other of the parties. Appellant, with a pistol, hailed Smith, who was armed with an ax, and passing on his way to his work. Both parties were armed with deadly weapons. Appellant saw that Smith was thus armed and still pressed the difficulty. This was not a case in which defendant provoked the combat, —produced the occasion,—intending only an ordinary battery; but appellant must have known that the combat would be of a deadly character; and under such a state of case, no matter to what extremity he may have been reduced in the combat,—no matter in what peril he may have been placed by his adversary, —had he shot and killed Smith, the killing would have been murder; and, so, death not resulting, the assault is an assault to murder. But counsel for appellant insist that the evidence shows a-mutual combat. Conceding it for the argument, it by no means follows that either party engaged in the combat would not have been guilty of murder had death resulted from the combat. When parties mutually engage in a combat with deadly weapons, under circumstances which would not reduce to manslaughter, if either is killed, the party killing would be guilty of murder, and the fa.ct that the combat is mutual would not ipso facto reduce to manslaughter. We have examined all the points raised in the brief of counsel, and have also given this record a most thorough investigation, but fail to find such error as requires a reversal of the judgment, and it is therefore affirmed. Affirmed.