Brown v. State

• Decision Date: 01 January 1856
• Citation: 16 Tex. 122
• Parties: JOHN BROWN v. THE STATE.
• Court: Texas Supreme Court

16 Tex. 122

JOHN BROWN

v.THE STATE.

Supreme Court of Texas.

1856.

In the case of an aggravated assault, the jury have a discretion, within certain prescribed limits, to assess or fix the punishment (Hart. Dig. art. 554). The court cannot control their discretion in that respect, even though it should appear that it was not judiciously exercised; which, however, in the present case, we see no cause to apprehend.

Where the witness came up during an affray, or excitement succeeding an affray, with a picket in his hand, and told the crowd that if they would put Brown (the defendant) down and paddle him he would pay fifty dollars and expenses, and then said to Brown that, if no one else would do it, he would whip him himself; whereupon Brown said, then you are the man I am after; God damn, I have got you now; God damn, I will kill you; and thereupon threw the axe which he had held in his hand at the witness; and the latter threw the axe back at Brown with violence; whereupon Brown took up the axe and pursued the witness, who ran until Brown was about to overtake him, when he turned, and Brown struck at him with the axe, missing him with the poll and hitting him with the handle: the jury having found the defendant guilty of an aggravated assault, it was held that the verdict was sustained by the evidence.

See this case for circumstances under which, where the defendant had been convicted of an aggravated assault, the court held that certain newly discovered evidence was wholly immaterial; but that if the testimony could have been of any avail to the accused, it was owing to his own negligence that he did not have the benefit of it.

It is scarcely necessary to say that the mere fact that there was a witness absent whose testimony might be obtained upon another trial, was no ground for granting a new trial.

Appeal from Brazoria. Tried before the Hon. Nelson H. Munger.

Indictment of the appellant for an assault upon Wiley Pollard with intent to kill, and verdict of guilty of an aggravated assault, and punishment assessed at six months' imprisonment in the county jail. Motion for new trial, on the ground that the verdict was excessive and unwarranted by the evidence, and on the ground of newly discovered evidence.

The testimony on the trial was as follows: R. J. W. Reel, for the state, sworn: Brown was quarreling with a Mexican for killing his dog, that had bitten the Mexican. Brown followed the Mexican through witness' kitchen; Brown had an axe; could not find the Mexican; went off and mounted a horse and got his gun. One Burger told Brown he should not hurt anybody there. Several persons gathered around Brown; some women came about. Pollard came down from his shop, picking up a picket as he came along. Pollard said something to Brown; Brown threw an axe at Pollard. Pollard dropped the picket, and threw the axe back at Brown. Brown seized the axe and started at Pollard. Pollard ran. Brown was overtaking him, when Pollard turned. Brown struck at Pollard; missed him with the poll of the axe, striking him with the handle. Both fell. Pollard got on Brown and beat him. Brown's daughter ran up and thumped Pollard on his back.

Jordan Tyler, for the state, testified as follows: Heard a quarrel between Brown and Mexican who killed his dog; several persons gathered round Brown; some women about; witness was in Pollard's shop, about fifty yards off; witness and Pollard looked out and saw the fuss. Pollard left his shop and went to Gregory Simm's shop; from there he went down to where the crowd were gathered around Brown. (Balance same as previous witness, and further.) The picket was about four feet long. The axe when thrown back at Brown by Pollard knocked eight or ten pickets off the fence; the axe was new and heavy. Witness thought Brown had enough. Some others standing by did not think Brown had enough. Pollard wanted to get off Brown; seemed about getting off. Witness and one or two others pulled Pollard off. Brown was badly beaten. Brown's wife and daughter were present.

Wiley Pollard, for the state, sworn: Was in his shop; heard Brown quarreling with the Mexican; several persons were gathered round; went from his own shop to Gregory Simm's shop to see about the stocking of some plows; from there went down to where Brown was making the fuss. Brown was using indecent and vulgar language in hearing of witness' wife and other women. As witness walked down into the crowd, he picked up a picket or pulled it off the fence. Witness told the crowd that if they would put Brown down and paddle him, witness would pay fifty dollars and expenses. Witness then said to Brown, that if no one else would do it, he would whip him himself. Brown said, then you are the man I am after. God damn, I have got you now. God damn, I will kill you. He then threw the axe at witness. Witness threw it back, knocking off some pickets. Brown picked up the axe and started after witness. Witness ran, Brown followed, and was about to catch him, when he turned. Brown struck with the axe, hitting witness with the handle across the face or shoulders. Brown and witness fell. Witness turned Brown as he fell; got on him; punched out both his eyes; choked the wind out of him, and beat him until the blood ran from his nose and ears. Brown then said if witness would let him up, he would go home. Witness let him go. As Brown rose, witness hit him another...