Bush v. State
| Decision Date | 10 June 1953 |
| Docket Number | No. 26473,26473 |
| Citation | 159 Tex.Crim. 43,261 S.W.2d 158 |
| Parties | BUSH v. STATE. |
| Court | Texas Court of Criminal Appeals |
Heidingsfelder, Knight & Daniel, by Jack W. Knight, Houston, for appellant.
William H. Scott, Crim. Dist. Atty., King C. Haynie, Asst. Crim. Dist. Atty., Houston, Wesley Dice, State's Atty., Austin, for the State.
Appellant was convicted of aggravated assault under the count of the information which alleged that he did go into the house of a private family, to wit, the house of Harvey Kirkpatrick, and there commit an aggravated assault and battery on said Harvey Kirkpatrick. His punishment was assessed at a fine of $1,000 and two years in jail.
Art. 1147, P.C., Sec. 3, Vernon's Ann.P.C. art. 1147(3), provides that an assault and battery becomes aggravated when the person committing the offense goes into the house of a private family and is there guilty of an assault and battery We overrule the contention that the information is fundamentally defective because it alleges that the assault and battery committed in the house of the private family of Kirkpatrick was an aggravated assault and battery. The assault and battery became aggravated under the provisions of Sec. 3 of Art. 1147, P.C. because the accused went into the family home and there committed the assault and battery and the pleader was referring to that ground of aggravation.
The state offered as a witness Betty Joe, a daughter of Kirkpatrick, who was present in the home when appellant and a companion entered and committed an assault and battery on Kirkpatrick.
This witness testified that she had lived with appellant for a time and had been away from him for a week or two when he came to her father's house. She did not testify to having seen the assault on her father.
Other testimony of the state established the assault, and it was shown that Betty Joe was carried out of the house and placed in a car, from which she was rescued by her mother.
Complaint is made of the fact that the attorney for the state, after calling Betty Joe Kirkpatrick as a witness, propounded to her the following questions:
Appellant objected to said questions on the ground that same were prejudicial. The objections were sustained and the questions were not answered. He moved for a mistrial also and this motion was overruled.
Thereafter the prosecuting attorney asked the question:
'Now, prior to the time you left Tommy Bush, when was the last time you gave him any money?'
Appellant again objected and moved for mistrial and again the objection was sustained, but the motion for mistrial was overruled. The trial court in each instance instructed the jury to disregard the questions.
Again, the prosecuting attorney asked the witness 'While you were living with Tommy Bush as man and wife, how did he make his living?'
The objection that the question was irrelevant, immaterial and highly prejudicial was sustained. No exception was reserved to the asking of the question.
Appellant did not testify and did not place in issue his character or reputation.
The questions were manifestly hurtful and the testimony sought to be elicited would have no bearing on the issue of appellant's guilt of the assault charged The only possible effect of the evidence called for by the questions would be to prejudice the jury against appellant because of his immoral conduct, wholly disassociated with the offense for which he was on trial.
Under the circumstances, the action of the trial court in sustaining the objections and instructing the jury to disregard the questions did not cure the error.
Appellant directs our attention to the testimony of Betty Joe Kirkpatrick on cross-examination wherein she stated that she had lived with appellant as his common-law wife and carried his name in certain places around town. Also appellant attempted to show that she had a child by him. We overrule appellant's contention that these facts, if true, would reduce the offense to simple assault because of his relation to the private family occupying the house in which he committed the assault.
We observe, however, that if the relationship between appellant and Betty Joe constituted a common-law marriage, she was disqualified as a witness for the state.
In Glover v. State, 142 Tex.Cr.R. 592, 152 S.W.2d 747, we held that the conclusion of the witness that she was a common-law wife was not sufficient to establish the relationship of husband and wife.
If the relationship of common-law...
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...about communications remains. This Court has held that Article 38.11, supra, applies to common-law marriages, Bush v. State, 159 Tex.Cr.R. 43, 261 S.W.2d 158 (1953). However, the claim of a common-law marriage will be closely scrutinized, Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978), ce......
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