Hall v. State

• Decision Date: 13 April 1949
• Docket Number: No. 24328.,24328.
• Citation: 219 S.W.2d 475
• Parties: HALL v. STATE.
• Court: Texas Court of Criminal Appeals

219 S.W.2d 475

HALL v. STATE.

No. 24328.

Court of Criminal Appeals of Texas.

April 13, 1949.

Appeal from Criminal District Court No. 2, Tarrant County; David McGee, Judge.

Raymond E. Hall was convicted of assault with intent to murder without malice, and he appeals.

Judgment reformed and affirmed.

No appearance for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is an assault with intent to murder without malice. The punishment assessed is confinement in the state penitentiary for a period of two years.

Appellant, in due time, filed a motion for a new trial based on the ground that the evidence was insufficient to sustain his conviction. The court overruled his motion to which he then and there excepted and gave notice of appeal to this court.

It was the state's theory, finding support in the evidence, that appellant and Allen Simpson, the owner of a beer tavern known as the Wagon Wheel, undertook to put E. M. Lee out of the place for some misconduct on his part; that in doing so appellant struck him with a blackjack on and about the head breaking his nose, his jawbone, and otherwise bruising his face. The injured party was carried to a hospital in an unconscious condition and remained in such condition for approximately 48 hours. He remained at the hospital under the care of a physician for about one week.

It was the defendant's contention that he undertook to eject E. M. Lee for misconduct while in the tavern on the night in question; that he picked up the chair in which Lee was sitting and started to the door with Lee sitting in the chair; that he fell and Lee bit him on the leg, whereupon he slapped him with his open hand; that at this juncture, Simpson came to his aid and they succeeded in ejecting Lee. Appellant also introduced some evidence which tended to show that some person on the outside struck, beat and kicked Lee after he had been ejected. This, however, was controverted by witnesses for the state. It will be noted from a brief summary of the testimony that an issue of fact was raised which the jury decided adversely to him, and this court would not be authorized to disturb the jury's verdict.

Appellant brings forward ten bills of exception complaining of the admission and exclusion of evidence, two bills complaining of argument by the assistant district attorney, and a great number of timely objections to the court's charge.

By Bill of Exception No. 2 appellant complains because the court permitted the state to prove by M. E. Lee, the injured party, that while appellant was in the act of carrying him out of the tavern Simpson, the owner of the tavern, came up and struck at him with his fist and made contact with him and from that time on he was out. Appellant objected to said testimony on the ground that any assault which Simpson may have made upon Lee under the circumstances would have no bearing on the issue in the trial of defendant, Hall, inasmuch as no concerted action between Hall and Simpson is shown. It appears from the record that Simpson and Hall were both indicted, each by a separate indictment, for the offense. There was some evidence from other sources that appellant struck Lee with a blackjack while Simpson struck him with his fist, both being present and both acting together with a common purpose and intent made the evidence admissible on the theory that they were principals.

By Bill of Exception No. 3 he complains because the court permitted Lee, the injured party, to testify that while appellant was carrying him, Lee, toward the door Simpson walked up, hit him with his fist and knocked him unconscious; that he regained consciousness two mornings later; that he was in the hospital for six days under the care of Dr. Kingsberry; that he, Lee, had a fractured skull, a broken nose, and a broken jawbone, to which appellant objected on the ground that what the X-ray disclosed was a matter of expert opinion; that the witness was not qualified to read and interpret X-rays; that it would be hearsay — something his doctor had told him. The objection was overruled and he excepted. As we understand the bill, Lee testified that he sustained a fracture of the skull, a broken nose and a broken jawbone. This, in our opinion, was admissible since he no doubt knew whether or not he had a broken nose and broken jawbone. However, Dr. Kingsberry gave, in substance, like testimony as that complained of, therefore no reversible error is shown.

Bill of Exception No. 4 reflects the following occurrence: After the prosecuting witness, Lee, had given his testimony in chief, appellant's counsel on cross examination attempted to lay a predicate to impeach Lee and while attempting to show that he, Lee, had attempted bribery of a witness, the state objected to the question and answers sought to be elicited, and moved the court to retire the jury which motion was sustained and then in the absence of the jury and out of their hearing, he proceeded to develop the following testimony by Lee, to-wit: "Luther Pringle is now working for me. I do not remember whether John Hays ever worked for me. I did not offer John Hays or Luther Pringle $50 each if they would come up here and testify against Simpson or Hall in this case. I have offered nobody anything. I don't know John Hays. I don't remember ever seeing him. Luther Pringle has not been subpoenaed. He has a son and I tried to subpoena him, and he has not shown up. Luther Pringle's boy came out to where I work to see his father, and he saw me and commenced telling me where I was hit and who did it, and I asked him to testify for me and he said `Yes, and I will go and get another man to testify for you.' I told him I would be very glad if he did. He left but never came back. Then when this case was called, I had him subpoenaed. A day or two later he came back and said he did not know anything about the case * * *. I did not talk to John Hays and I did not offer him $50 to testify that Hall and then Simpson beat me up. About three years ago I cut a man with a knife. The grand jury did not indict me." At this juncture, the court declined to permit counsel to further inquire of the complaining witness relative to fights and people he had cut with a knife, and instructed defense counsel not to interrogate the witness about any of these transactions in the presence and hearing of the jury, to which ruling of the court appellant excepted. John Hays was then called and he testified in substance as follows: "I have seen E. M. Lee since this affair happened at the Wagon Wheel. He talked to me about being a witness in his behalf. He told me that if I saw Allen Simpson hit him in the Wagon Wheel, he would pay us off; that is me and Pringle. He said he would pay me around $50. I told Lee I was not there when it happened. He said he wanted me to testify that I saw Simpson hit him, but I refused to do so." Thereupon, appellant called Luther Pringle who testified in substance that he was a son of John Luther Pringle who works at A. J. Lee's with E. M. Lee; that he did not see any disturbance at the Wagon Wheel on December 14, 1947, but heard a few talking about it after it happened. Lee, the injured party, asked him if he would swear that Allen Simpson hit him in the face with his fist. "I told him I did not see it. I was subpoenaed by telephone to come up for $50 for Raymond E. Hall. I told them I did not know anything about it." The foregoing is, in substance, all that is disclosed by the bill. The record shows that appellant called John Hays and Luther Pringle, placed them on the witness stand, and they testified before the jury in substance as disclosed by the bill. However, the witness, John Hays, on cross examination, found himself in a position to refuse to answer some of the questions propounded to him by state's counsel, which in our opinion didn't make a favorable impression on the jury. We fail to see how or in what way appellant was hurt by the ruling of the court since he was permitted to introduce the testimony before the jury for which he sought to lay a predicate. What difference did it make whether or not he laid any predicate for impeachment of the prosecuting witness, since he was permitted to introduce the very testimony he desired to get before the jury.

Bill of Exception No. 5 reflects the following occurrence: Dr. Kingsberry being called by the state as a witness testified on direct examination that he had X-ray pictures made of the face and head of Lee, the injured party, whereupon, he was asked what the X-ray pictures showed, to which appellant objected on the ground that the X-ray pictures themselves were the best evidence and was hearsay since no predicate had been laid for the introduction of secondary evidence. The objection was overruled and the court instructed the jury, "The doctor may state as a fact from his experience in dealing with the man. I will permit him to tell what he knows to be true." Whereupon, the doctor testified that Lee, the injured party, had...