Caldwell v. State
| Decision Date | 31 December 1849 |
| Citation | 5 Tex. 18 |
| Parties | CALDWELL v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where, after the trial had commenced, it was discovered that the indictment was not indorsed “filed,” the court ordered the clerk to make the indorsement, which was done: Held, There was no error.
Where one person presents a gun at another in a hostile manner within shooting distance, the presumption is that it was loaded; and if it was not loaded, it devolves upon the defendant to prove it, and that he knew it at the time. (Note 3.)
Appeal from Collin. The appellant was convicted of an assault with intent to murder, by presenting a loaded gun, &c. After the trial had commenced, it was discovered that the indictment had not been indorsed “filed.” The court ordered the clerk to make the indorsement, which was done, and the defendant excepted. The defendant asked the court to charge the jury that it devolved upon the State to prove that the gun was loaded. But the court refused to do so, and charged that if the defendant presented his gun at the prosecutor within shooting distance in a hostile manner, the presumption was that the gun was loaded, and that it devolved upon the plaintiff to prove the contrary, and that he knew it at the time.
Cravens, for appellant.
I. The indictment, as is shown by reference to the record and bill of exceptions, was not filed until after the commencement of the trial. Upon objection being made the court ordered the indictment to be filed by the clerk and the trial to proceed, to which exception was taken. The statute contemplates and the rules of court require the clerk to file each paper at the time it is received, and will not allow the court to notice any paper that is not thus identified with the record. The Supreme Court of Tennessee, under a statute requiring the name of the prosecutor to be indorsed upon the indictment, decided, in the absence of such an indorsement, that the judgment must be arrested. (10 Yerg. R., 239.) The reason for arresting the progress of this cause upon the discovery of such a defect is still stronger. The paper was not a record in the court, and the fact that a similar bill had been formerly returned by the grand jury could not prove that the one upon which the conviction in this case was had was the same one; nor could the court know whether it was so or whether it was for an assault committed upon an entirely different person.
II. If the gun was presented at Helms by the defendant, does the presumption arise that the gun was loaded, and would the defendant be compelled to prove two negatives, to wit, that the gun was not loaded, and that he knew that it was not loaded? In the absence of the gun being loaded having been proved, either presumptively or positively, there could have been no assault, because there was an absence of a present ability to do any bodily harm, whatever might have been the intention; but...
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