Wiseman v. State

• Decision Date: 25 November 1893
• Court: Texas Court of Criminal Appeals
• Parties: WISEMAN v. STATE.

24 S.W. 413

WISEMAN v. STATE.

Court of Criminal Appeals of Texas.

November 25, 1893.

Appeal from district court, Bell county; W. A. Blackburn, Judge.

William Wiseman was convicted of assault with intent to murder, and appeals. Affirmed.

Jas. Boyd and W. S. Holman, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of an assault with intent to murder. Bills of exceptions were reserved to the admission of insulting language used by defendant in regard to Miss Mitchell, as well as to the charge of the court in several particulars, but, inasmuch as the bills were not filed until two days after adjournment of the court, they cannot be considered on appeal. This disposes of the objection to the testimony. If, however, the charge, though not excepted to at the time, is erroneous, the judgment will be reversed, provided the errors are of such a nature, when considered in connection with the evidence adduced and issues raised on the trial, as were calculated to injure the rights of the accused. We have carefully examined the charge of the court, and objections thereto made, but find no error has been committed. Every phase presented by the evidence favorable to defendant was by the charge submitted to the jury. This having been done, there was no error in refusing charges requested by defendant. We are of opinion the evidence amply supports the conviction for assault with intent to murder. When struck by Spivey, appellant returned the blow with a knife instantly, thus demonstrating that he was not only prepared with an open knife, and willing, but that he was anxious, to engage in a deadly conflict with Spivey, the assaulted party. The judgment is affirmed.

On Rehearing.

(Dec. 13, 1893.)

HURT, P. J.

Pertaining to a bill of exceptions, which appeared from the record as having been filed too late, the record being corrected, it now appears to have been filed in time, and the matter therein will be considered. Over objections of defendant, the state proved by Spivey that he asked defendant why he did not dance with the Mitchell girl. He replied that the "damn bitch was too high-toned to dance with him." When these remarks were made, defendant went out of the house on the gallery, and, "about five minutes after," Spivey was requested by Hendren to come out. Spivey asked him what he wanted, and he said, "Come out." Spivey went just outside of the door, where Hendren and defendant were, and Hendren said to defendant, ...