Bowers v. State

• Decision Date: 25 January 1888
• Citation: 7 S.W. 247
• Parties: BOWERS v. STATE.
• Court: Texas Court of Appeals

Page 247

7 S.W. 247

BOWERS v. STATE.

Court of Appeals of Texas.

January 25, 1888.

Appeal from district court, Falls county; E. WILLIAMS, Judge.

J. L. Bowers was indicted for maiming one H. A. Dansby, by biting off a portion of his thumb. The evidence for the state shows that appellant, Dansby, Estes, Foster, and other parties were confined together as prisoners in the county jail of Falls county. It appears that a few days prior to the alleged offense the sheriff, in an effort to control an insubordinate negro prisoner, fired upon and killed the said negro. Dansby testified as a witness upon the inquest over the body of the negro. Soon after that inquest the brother of Estes visited him at the jail, and after he retired, Dansby was notified by defendant and Estes that he would be tried for his testimony on the inquest, they alleging that they had ascertained that Dansby testified on the inquest that Estes showed the negro a lock and chain, and told him to use it in resisting the sheriff, and that defendant furnished the negro with a knife for the same purpose, which testimony, they averred, was untrue. Afterwards Estes assaulted Dansby, and in the struggle, got Dansby's thumb in his mouth. While Estes was holding Dansby's thumb in his mouth, defendant kicked Dansby's arm with his foot, and knocked his hand from Estes's mouth, but leaving a fragment of his thumb torn off. Foster testified that, prior to the difficulty, he (Dansby) and Estes agreed to try Dansby, by the prison code, and whip him for his alleged false testimony on the inquest. Foster stated that he became a party to the agreement with the distinct understanding that Dansby should not be injured. He testified that, after the fight, Estes and defendant fabricated the statement that Dansby got his thumb between the door and wall, and that, the door closing, it was crushed off, and importuned him to give that as an explanation of Dansby's injury, which he declined to do. It was shown for the defense that Dansby's thumb was not totally and permanently destroyed, and he offered to prove that to lie was an offense under the prison code, which Dansby had helped to formulate, and which he had enforced upon other prisoners. This proposed proof was excluded. There was a conviction, and defendant appeals.

P. P. Norwood, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

To constitute the offense of maiming, the act must be done both willfully and maliciously. A willful act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. A malicious act is one committed in a state of mind which shows a heart regardless of social duty, and fatally bent on mischief; a wrongful act intentionally done, without legal justification or excuse. In trials for this offense, the legal signification of the words "willfully" and "maliciously" must be explained to the jury. Willson, Tex. Crim. Laws, §§ 876, 877. This, we think, was substantially and sufficiently done in this case. But we are of the opinion that the court committed a material error in rejecting the testimony of the witnesses Ledbetter and Foster, offered by the defendant for the purpose of showing, or as tending to show, that the violence inflicted upon the injured party was not inflicted willfully and maliciously, within the legal signification of those terms. We think the rejected testimony was pertinent to the issue of intent, and that the defendant was entitled to have it placed before the jury for their consideration, in connection with the other evidence adduced.

It is insisted by counsel for the defendant that the law applicable to the facts of this case was not given in charge to the jury. It appears from the evidence that the defendant, one Estes, Dansby, the injured party, and others were confined as prisoners in the county jail. Dansby had testified as a witness at an inquest held over the dead body of a negro prisoner who had been killed in said jail a short time before the difficulty occurred which is the foundation of this prosecution. Defendant and Estes charged that he had given false testimony before said inquest, and they and others of the prisoners agreed that for so falsely testifying they would whip Dansby with a leather strap, — an instrument...