Bradberry v. State
| Decision Date | 13 November 1886 |
| Citation | 2 S.W. 592 |
| Parties | BRADBERRY <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
This conviction was for an assault with intent to murder, and the penalty assessed by the verdict was a term of two years in the penitentiary. For the purposes of this report, it is sufficient to state that the testimony of the prosecutor, the one eye-witness to the entire transaction, introduced upon the stand, disclosed a most unprovoked attack upon the witness on the highway by the defendant. The casus belli was a disputed account of a few dollars claimed by the defendant to be due him from the witness. According to the witness, he met the defendant and two others in the public road, stopped and exchanged friendly greetings with them, and joined them in a drink of whisky. Defendant solicited a private interview with the witness, and sent his two companions forward. When they passed beyond view, the defendant demanded an acknowledgment of the debt at the point of his pistol, and fired three shots at the witness, one of which took effect in the witness' shoulder, and fled, whereupon the witness drew his pistol, and fired two or more shots at defendant as he was fleeing. Two other witnesses for the state, who saw the shooting from a distance of 200 or more yards, testified that they recognized the prosecutor at the time, but could not see his antagonist. They knew, however, that the first three shots were not fired by the prosecutor, but by some one near him. One of the witnesses referred to went to the scene of the shooting after it was over and found the defendant hobbling around, shot through the leg, and it was by this witness that the defense proposed to prove the statements made by the defendant after the shooting referred to in the second head-note of this report.
The defendant's witnesses testified to the friendly character of the meeting of the defendant and the prosecutor a few moments before the shooting, and declared that the prosecutor, and not the defendant, asked for the private interview.
Montrose & Grubbs, for the appellant, urged the insufficiency of the indictment to charge the offense of assault with intent to murder, and called in question the correctness of the court's action in excluding from evidence the declarations of the defendant made under the circumstances stated in the opinion.
Asst. Atty. Gen. Burts, for the State.
This indictment, which is for assault with intent to murder, is assailed as insufficient, because it does not aver that the pistol — the weapon alleged to have been used in the commission of the offense — was charged, nor does it otherwise allege that the defendant had a present ability to inflict an injury. In support of this position, we are cited to Robinson v. State, 31 Tex. 171. That opinion does sustain the position, it is true, but no authority is cited in support of the opinion; and, if the doctrine therein enunciated ever was the law, it has long since ceased to be so in this state. The indictment is in conformity with later decisions and approved forms in this state. See Willson's Criminal Forms, No. 357, and authorities cited, — especially Montgomery's Case, 4 Tex. App. 140; Payne's Case, 5 Tex. App. 35; and Bish. Crim. Proc. (3d Ed.)...
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Salas v. People
... ... gestae. The statement itself is no proof that it is a part of ... the res gestae. State v. Williams, 108 La. 222, 32 So. 402; ... Bradberry v. State, 22 Tex. App. 273, 2 S.W. 592; Ford v ... State, 40 Tex. Cr. R. 280, 50 S.W. 350; ... ...
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State v. Sanford., 4476.
... ... Appellant in his brief cites the case of Campbell v. Brown, 81 Kan. 480, 106 P. 37, 26 L.R.A.,N.S., 1142 and also the case of Bradberry v. State, 22 Tex.App. 273, 2 S.W. 592, 593, as the law governing the proper test to be applied to testimony to determine its admissibility under the res gestae rule. From the Texas case we quote: “Were the statements res gestæ? ‘There are no limits of time within which the res ... ...
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Nami v. State
... ... The main point in such case would be the spontaneity or instinctiveness of such statements, in determining which we would take into consideration the time and other circumstances to a greater or less degree. Bradberry v. State, 22 Tex. App. 278, 2 S. W. 592; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175. Statements to be res gestæ need not be made at the same time if they reflect a continued expression of the facts surrounding the transaction expressing themselves through the party making the statements ... ...
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State v. Sanford
...cites the case of Campbell v. Brown, 81 Kan. 480, 106 P. 37, 26 L.R.A.,N.S., 1142 and also the case of Bradberry v. State, 22 Tex.App. 273, 2 S.W. 592, 593, as the law governing the proper test to be applied to testimony to determine its admissibility under the res gestae rule. From the Tex......