Ballew v. State
| Decision Date | 08 May 1940 |
| Docket Number | No. 20962.,20962. |
| Citation | 141 S.W.2d 654 |
| Parties | BALLEW v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Hall County; A. S. Moss, Judge.
Raymond Ballew was convicted of assault with intent to murder with malice, and he appeals.
Reversed and remanded.
Jas. C. Mahan, of Childress, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is an assault with intent to murder with malice. The punishment assessed is confinement in the state penitentiary for a term of two years.
The testimony adduced by the State, briefly stated, shows that in the early part of the night the officers overtook appellant in his car going in the direction of the negro section of the town of Memphis. They stopped him, searched his car for whisky and found two pints which they placed in the officers' automobile. Appellant reached in the car, took the whisky and threw it in the weeds. One of the officers knocked appellant down. Appellant arose from the ground and while the officers were engaged in looking for the whisky he made his escape, leaving his automobile in possession of the officers. The officers took the automobile to the jail yard and parked it. They then proceeded to appellant's home, which was located in a garage apartment, for the purpose of searching it. While some of the officers were on the small platform at the head of the stairway asking to be admitted, they heard glass breaking. Not receiving any response to their request, they decided to break a window pane, unlock the window and enter the building. While the officers were thus engaged, some one fired upon them from behind a utility pole standing sixty or seventy feet away, and one of the officers returned the fire and saw a man run away from behind the pole whom he recognized as the appellant. One of the officers was struck by a bullet in the arm and another one was struck by a bullet in the leg.
Appellant testified that he was in his home breaking whisky bottles and running the contents into the bath-room drain at the time the officers were attempting to gain entrance to his home and the shooting took place. That after the shooting he left his home by going through the east window and descending to the ground. In this he was corroborated by his wife.
Appellant also proved by a negro, who occupied a room in the lower part of the garage, that after the shooting he asked one of the officers if he knew who did the shooting, to which the officer replied that he did not.
Bill of Exception No. 1 reflects the following occurrence: While Edd McCreary was being cross-examined by appellant's counsel, he was asked if he knew a negro by the name of Fenner and if Fenner did not owe a fine for bootlegging? If they, the officers, had not made arrangements with Fenner that if he, Fenner, would entice the appellant over to his place so that they might arrest appellant they would relieve him from the payment of the fine. And if, pursuant to said agreement, Fenner had not informed them, the officers, that appellant would be there that night with some whisky? To all of which the State objected and the objection was sustained. The bill further shows that if the witness had been permitted to answer said questions, he would have answered them in the affirmative. The bill is qualified by the court, who states in his qualification that the defense attorney asked whether the witness had agreed with the negro Fenner "if he would help you catch Raymond Ballew you would turn him, Fenner, loose". To which the witness answered: "Not with me, he didn't have." To this qualification no exception was taken; hence appellant is bound thereby. The bill as thus qualified fails to reflect reversible error.
Bill No. 2 reflects the following occurrence: After appellant had testified that he was in his home at the time of the shooting and did not do the shooting, he undertook to further testify that after the shooting he had a conversation with Dr. E. H. Boaz of Memphis, Texas, who admitted that he, Boaz, did the shooting but declined to come into court and testify to said fact because he did not want to get into trouble. The State objected thereto, the court sustained the objection and refused to let said testimony go to the jury. The court qualified this bill and in his qualification states: ...
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Thornburg v. State, 01-84-0542-CR
...must have relied solely on circumstantial evidence. Ramirez v. State, 543 S.W.2d 631, 632-33 (Tex.Crim.App.1976); Ballew v. State, 139 Tex.Crim. 636, 141 S.W.2d 654 (1940). In this case, the complainant positively identified appellant as one of the two persons who kidnapped and sexually ass......
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Davis v. State, 23118.
... ... The bill, as qualified by the court, was accepted by appellant and he is bound thereby. See 4 Tex.Jur. p. 278, sec. 194; also Jenkins v. State, 146 Tex.Cr.R. 364, 175 S.W.2d 83; Ballew v. State, 139 Tex.Cr.R. 636, 141 S. W.2d 654; Whitlock v. State, 146 Tex.Cr. R. 594, 177 S.W.2d 205; Yarbrough v. State, 146 Tex.Cr.R. 217, 172 S.W.2d 345. The bill, as qualified, brings no question before us for consideration ... By Bill of Exception No. 3 appellant complains ... ...
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...of the third party's guilt was not admissible. See also Cameron v. State, 153 Tex.Cr.R. 29, 217 S.W.2d 23 (1949), Ballew v. State, 139 Tex.Cr.R. 636, 141 S.W.2d 654 (1940), and Woodard v. State, 463 S.W.2d 197 (Tex.Cr.App.1971) The concept of requiring a State's case to be wholly circumstan......
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