Barnes v. State

• Decision Date: 06 January 1943
• Docket Number: No. 22216.,22216.
• Citation: 167 S.W.2d 197
• Parties: BARNES v. STATE.
• Court: Texas Court of Criminal Appeals

167 S.W.2d 197

BARNES v. STATE.

No. 22216.

Court of Criminal Appeals of Texas.

January 6, 1943.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

C. V. Barnes was convicted of assault to murder, and he appeals.

Reversed and remanded.

John C. Henderson, of Angleton, and Robt. M. Lyles, of Angleton (on appeal only), for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was given a penalty of ten years in the State prison for an assault to murder upon Dorothy Godley, hence this appeal.

The indictment contained four counts, the court submitting this cause upon the fourth count. Such count alleged, in substance, that appellant made an assault in and upon Dorothy Godley and shot at her, and that she died from shock and fright.

The deceased was a negro girl thirteen years old; her mother, and an old negro man, the girl Dorothy and a child were in an automobile, driving from Houston into Brazoria County, where Dorothy's father and brothers and sisters lived. That while passing the farm rented or managed by appellant these colored people came to a mudhole through which their car could not pass. There being a parallel road in appellant's controlled pasture, they turned into such road and drove down it some distance, when they came to another mudhole and the driver stopped the car. Dorothy Godley was in the rear seat of this car with the child, and looked back and said "Yonder is that man," evidently referring to appellant, who soon arrived on the scene with a gun in his hand, later shown to have been a 22 rifle. The State's witnesses say that the mother got out and begged appellant not to shoot; that they were trying to get by to see her children; that appellant said: "You are a ____ liar, you are trying to get pecans" and while this talk was going on Dorothy got out the back of the car; appellant fired a shot, the gun pointed at the deceased; Dorothy said "Oh", walked about seven or eight yards and fell on her face. Appellant said "Get her up and get out of here, or I will kill all you niggers;" that appellant lifted the girl up, felt her hand and said she is dead; "get on out of here and I don't never want to see you again". Beneath the girl's body was a quantity of blood, and near thereto there was afterwards found a 22 bullet, and a horse track an inch and a quarter or an inch and a half deep filled with blood.

Appellant testified that he was in charge of this farm; that he had been bothered with people taking his pecans from the bottom; that he saw these negroes and thought they were going after pecans; that he belonged to a rifle club, and had his gun intending to do some shooting; that he saw the mother get out of the car, and he asked her what she was doing there; she said she was going to see her children; he told her that he did not believe her; he thought she was after his pecans; that the safety was on on the gun, which he had in his right hand; when the rear door of the car was opened and a girl or woman leaped out with her hands up directly towards him, it scared him; he thought she had a knife in her hand; he was nervous and excited, and the gun fired; he had no recollection of firing it; he did not intend to shoot at Dorothy Godley or at any other person.

Bill of exceptions No. 1 contains a complaint at the trial court's overruling appellant's objections to the indictment for many and varied reasons, with none of which are we in accord.

By means of a special requested instruction given at appellant's suggestion, the jury were directed, in substance, to disregard all counts save the fourth in the indictment, which alleged a death of the girl from fright caused by an assault and shooting. The jury found appellant guilty of an assault with intent to murder with malice.

Bill of exceptions No. 2 relates to a hypothetical question propounded by the State to a witness, Dr. Brooks Stafford, embodying a resume of the testimony shown therein, and an effort to have such doctor give his opinion based on such facts as to what caused the death of such girl. This bill is defective in that nowhere therein is it shown that Dr. Stafford ever answered such question, nor is it shown what his expected answer would be. No damage is evidenced of any kind to the appellant, so we think, because no answer to such question was made before the jury.

Bill of exceptions No. 3 relates to the mother of deceased, while on the stand, being asked why she was going down the road upon which the girl met her death, and she answered that she was going to see her other children who lived in that county, and was taking them some clothes, etc. We do not think this was such an improper or prejudicial question and answer that any serious error is here presented.

Appellant complains because the trial court refused to give in charge to the jury the following special requested instruction: "If you believe from the evidence, or have a reasonable doubt thereof, that at the time the defendant's gun was fired that he had no specific intent to kill the said Dorothy Godley, you will find the defendant `Not Guilty' and so state by your verdict."

It is shown that appellant testified and claimed that the firing of the gun was accidental, and that he had no conscious knowledge of having fired the same. He also said: "I did not intend at any time to shoot at Dorothy Godley, or at any other person."

The careful and learned trial judge gave a comprehensive charge on the law as applied to the facts in the case. In paragraph six thereof he charged the elements of the offense of a shooting "with the intent...