Cox v. State

• Decision Date: 15 December 1909
• Parties: COX v. STATE.
• Court: Texas Court of Criminal Appeals

123 S.W. 696

COX v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1909.

Appeal from District Court, Cherokee County; James I. Perkins, Judge.

W. M. Cox having been convicted of an aggravated assault, he appeals. Reversed.

Norman & Shook, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the court below for an assault with intent to murder. His trial resulted in a conviction of aggravated assault, and his punishment assessed at a fine of $100. From this judgment appellant has appealed to this court for a reversal on sundry errors assigned.

An inspection of the statement of facts discloses that appellant, on the night of the 3d of December, 1908, went to the home of the prosecuting witness and injured party, Fuller, in his absence. On the night in question Fuller, the prosecutor, had gone to a neighbor's house some two miles away accompanied by his wife to some kind of social gathering. After he had been at his neighbor's house some while he received information that induced him to return home, leaving his wife at the festival. In this connection prosecuting witness testified as follows: "When I got the information I borrowed a mule and went back home, which was about a mile from there. And when I gets to the yard gate, I gets down and hitches the mule at the gate, and I goes all the way around the house and comes back to the gallery, and goes in on the gallery, and there was a chair against the front door, and I pushed the door open with my left hand, and I goes in my pocket with my right hand and gets a match and strikes it, and when I struck the match I saw a man person coming from the direction of the bed where my little girl was sleeping, and when he run out he run to the middle door and jerked it open with one hand, and jerked it to behind him, and I run on after him right behind him, and jerked the door open, and by that time he was at the back door and jerked the back door open, and run out and jerked it to behind him, and by that time I jerked the back door open, and when I opened the door he was standing on the outside right down on the ground. I didn't know who he was at that time, and when I opened the door he just reached up and caught me on the right side is my recollection. He caught hold of my coat, and I walked backward and stepped back up in the room, and when he stepped back in the room he struck me in the side with some sharp instrument—knife or something—in my right side; he cut me in the side with something or other, and by that time I grabbed him and we gets in a tussle there, and I managed to throw him down, and I jumped straddle of him and choked him until he was about out of breath, and I gets up and goes back in the house on the mantle board and gets a match and come back and struck the match, and when I come back and struck the match I found out who it was. It was W. M. Cox. He was laying down there by the stove when I struck the match." This is a sufficient statement of the prosecuting witness' testimony. Appellant took the stand in his own behalf, and, in substance, testified that he had been in the habit of meeting the prosecuting witness' wife at various places and having intercourse with her, and that he had an appointment with her to meet her that night at the prosecuting witness' home, she informing him that the prosecuting witness would be away from home, and that he went to the house for that purpose; that he had just gotten in the house when the prosecuting witness broke in on him; that he discovered the prosecuting witness' wife was not at home; and that he immediately attempted to beat a retreat, and was hurriedly leaving the place and abandoning the premises of the prosecuting witness, when he was pursued by the prosecutor, knocked down, and in the scuffle he cut prosecuting witness.

1. Now, upon this state of facts, the court charged the jury as follows: "If the occasion of the difficulty was the entry of defendant into J. H. Fuller's home at night, with intent to procure, or solicit, sexual intercourse with Fuller's wife, and, being found there, fled, and was pursued by Fuller, then, in such case, if defendant voluntarily stopped, and intentionally cut Fuller with a knife or other sharp instrument before Fuller had committed any assault or violence upon him further than pursuit, then defendant could not claim or be allowed any right of self-defense, and the grade of the assault thus committed would be determined by you from...