Brown v. State

• Decision Date: 02 February 1898
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W. 174

BROWN v. STATE.

Court of Criminal Appeals of Texas.

February 2, 1898.

Appeal from district court, Navarro county; L. B. Cobb, Judge.

Calvin Brown was convicted of an assault with intent to murder, and appeals. Affirmed.

Gore & Gore, for appellant. Mann Trice, for the State.

DAVIDSON. J.

Appellant was convicted of an assault with intent to murder. It is contended that the testimony is insufficient to support the conviction. We do not agree with this contention. The evidence for the state, in substance, shows that, on the night previous to the alleged assault, the prosecutor went to the residence of Emma Ely, a relative of his, and there found the defendant lying on a bench, with his head in the lap of said Emma. Prosecutor asked her if she had nothing to do but nurse the defendant's head. She replied that she had not. The defendant then asked the prosecutor what he came for. He replied, "Nothing." He told him to get nothing, and go with it. The prosecutor says that he went. The next day about 3 o'clock he returned to the residence of said Emma Ely on horseback, rode up before the door, and stopped. The defendant came to the door with two pistols in his hands, and said to him, "God damn you, I am going to shoot you!" Prosecutor replied, "God damn you, shoot; you won't do nothing you say you'll do!" Defendant raised one pistol, and snapped it at the witness three times. He then changed the pistols in his hands, raised the other, and fired, the ball striking the witness "in the forehead between the eyes," and, glancing around over the left eye, passed through the jaw, and lodged in the neck, just under the jaw bone. This is the state's case, and is, of course, sufficient to support the conviction. The defendant testified in his own behalf, and denied his acts and previous conduct on the evening before at Emma Ely's, and stated, in connection with the difficulty itself, that the prosecutor had promised to go fishing with him on the day of the difficulty, and had failed to keep his promise. When the prosecutor came to the residence of Emma Ely, he went to the door with the two pistols in his hands, and he and the prosecutor talked pleasantly for 10 or 15 minutes, and he said to him, in a jocular way, that he was going to shoot him for not coming at the time he said he would; raised one pistol, and snapped it at him twice; and then raised both pistols to snap at him, and one of them fired. "The first pistol I snapped had two cartridges in it, and, when it revolved to the cartridges, I turned it with my thumb in order to keep it from firing. The other pistol (the one I shot him with) only had one cartridge in it, and I had got it on the previous Friday to take to my brother, who had traded for it. It had two cartridges in it when I got it, and I shot one of them. The cylinder would not revolve. I did not know that Emma Ely had handled it on Saturday before the shooting. Did not know that she had fixed it so it would shoot." He testified that he had no intention of shooting the prosecutor, and did not intend to kill him; that the shooting...