Clark v. State, 27908

• Decision Date: 11 January 1956
• Docket Number: No. 27908,27908
• Citation: 162 Tex.Crim. 493,286 S.W.2d 939
• Parties: George William CLARK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 939

286 S.W.2d 939

162 Tex.Crim. 493

George William CLARK, Appellant, v. The STATE of Texas, Appellee.

No. 27908.

Court of Criminal Appeals of Texas.

Jan. 11, 1956.

McKool & Bader, by Bert Bader, Dallas, for appellant.

Henry Wade, Crim. Dist. Atty., Thomas B. Thorpe and Charles S. Potts, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Appellant was charged by indictment with assault with intent to murder with malice, the indictment alleging that on or about July 15, 1954, he did 'voluntarily and with malice aforethought make an assault in and upon Hurn Mitchell.'

The jury rejected appellant's defense of alibi and his plea for suspension of sentence; found him guilty of assault with intent to murder with malice and assessed his punishment at three years confinement in the penitentiary.

Appellant cites a number of murder cases in support of his contention that the indictment is fatally defective because it fails to allege the manner or means or Numerous decisions are to be found which hold that the indictment an assault with intent to murder case need not allege the means used, among which are: State v. Croft, 15 Tex. 575; Mathis v. State, 39 Tex.Cr.R. 549, 47 S.W. 464; Grady v. State, 150 Tex.Cr.R. 331, 200 S.W.2d 1017; Williams v. State, Tex.Crim., 285 S.W.2d 723. See also Branch's Ann.P.C., p. 946, Sec. 1623.

The next point advanced is that the indictment charges the assault to have been made on one 'Hurn' Mitchell whereas the proof shows that the complainant was 'Huren' Mitchell. The variance is claimed to be fatal.

The statement of facts shows that the complaining witness gave his name as 'Huren' Mitchell.

Appellant's trial counsel does not appear to have used the given name of the prosecuting witness, and at no time during the trial was the witness called upon to spell his name. When the attorney for the State used the given name it appears several times as 'Hurn' and later as 'Huren'.

The first witness called by the State was Dr. Glen Leland, physician. He testified that on the day in question he was called to the emergency room at Parkland Hospital to receive a patient whose name he learned was 'Hurn' Mitchell. He was asked by counsel for the State to describe to the jury the wound or injury 'Hurn' Mitchell had, and he answered: 'He had a recent bullet wound; the point of entry was in the chest under the left arm, the bullet went on through and was just under the skin here (indicating)--the bullet had traveled through his chest.'

Later in his examination he was asked by the same counsel for the State: 'at the time you treated 'Hurn' Mitchell was he coughing up blood?' and he answered that he was.

He was further asked by the same counsel for the State: 'Now, doctor, did you see this complainant 'Hurn' Mitchell at a later time?' and he answered that he did and followed up the treatment.

Thereafter, throughout the statement of facts, when the same counsel for the State referred to or addressed the complainant, the statement of facts shows the name spelled 'Huren' rather that 'Hurn' Mitchell.

The complaining witness testified that he was shot through the chest by appellant and that he was treated for such wound by Dr. Leland at Parkland Hospital on the night in question and a number of times thereafter.

No question was raised regarding the name of the injured party until after the trial when in his amended motion for new trial, filed by his counsel on appeal, the variance was claimed.

In answer to this motion for new trial the State filed a controverting affidavit setting out that wherein the statement of...