Brown v. State, 30540
| Decision Date | 08 April 1959 |
| Docket Number | No. 30540,30540 |
| Citation | 322 S.W.2d 626,167 Tex.Crim. 621 |
| Parties | J. Von BROWN, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert C. Benavides, W. J. Durham, Filemon Valdez, Dallas, for appellant.
Henry Wade, Dist. Atty., James K. Allen, Ben Ellis, H. Dustin Fillmore, and Merle Flagg, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
Appellant was convicted and assessed a term of five years in the penitentiary for assault with a prohibited weapon, the indictment alleging that while unlawfully carrying on and about his person a pistol he did, with said pistol, willfully commit an assault upon Jack Revill.
The evidence from the State's standpoint was that Jack Revill and W. B. Frazier, Detectives of the Dallas Police Department, on September 3, 1958, were seated in an unmarked Ford automobile on a public street in a colored residential area in South Dallas shortly after midnight; that a third officer was in the area at their direction.
A Cadillac automobile, being driven in reverse, approached and the two officers ducked their heads so they could not be seen and the Cadillac passed and stopped.
Appellant suddenly appeared at the right door of the officers' car and pointing a pistol at Revill said 'Get out of the car with your hands up or I'll kill you.' Both Revill and Frazier complied with the order.
Lt. Frazier showed appellant his badge and card identifying him as a police officer, as both he and Revill had stated, and appellant 'reluctantly' re-holstered the pistol and then surrendered it to Lt. Frazier and was taken to jail.
The court in his charge gave the usual definition of assault and battery and instructed the jury that the law provides that if any person shall willfully commit an assault or an assault and battery upon another with a pistol while the same is being carried unlawfully by the person committing the assault he shall be deemed guilty of an assault with a prohibited weapon and, upon conviction, shall be punished by fine not to exceed $200, or by imprisonment in jail not to exceed two years, or by confinement in the penitentiary for not more than five years.
'Willfully' was defined as meaning that the act was committed voluntarily, intentionally and purposely as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. This defined the word willfully as used in common parlance.
Willfully when used in a penal statute means more. It means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful. Thomas v. State, 14 Tex.App. 200; Shubert v. State, 16 Tex.App. 645; Caldwell v. State, 55 Tex.Cr.R. 164, 115 S.W. 597, (malicious mischief); 45 Words and Phrases Willful 207. It includes evil intent and malice as well as set purpose and design. Mercardo v. State, 86 Tex.Cr.R. 559, 218 S.W. 491, 8 A.L.R. 1312.
The charge instructed the jury that the State must prove to the jury's satisfaction that the pistol was being unlawfully carried by the defendant at the time of the assault and in that connection instructed the jury 'that it is unlawful for any person to carry on or about his person any pistol.'
Applying the law so given, the court authorized a conviction upon findings by the jury beyond a reasonable doubt that appellant, with a pistol, 'the same being a prohibited weapon, as above defined', willfully committed an assault upon Revill and that the pistol was then being unlawfully carried by appellant on or about his person.
Except for the 'unless you so find beyond a reasonable doubt you shall acquit * * *' the charge submitted no defense to the charge that the pistol was carried unlawfully or to the charge that the assault by pointing the pistol was willful.
Appellant, a Negro minister, admitted that he pointed a pistol into the car and ordered the occupants to get out with their hands raised, but denied that he added 'or I'll kill you.'
His testimony, supported in part by other evidence, was: He was the pastor of the Lighted Church of Prayer, which was located in the next block from the car in which he...
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