Crist v. State

• Decision Date: 25 May 1886
• Citation: 17 S.W. 260
• Parties: CRIST v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

17 S.W. 260

CRIST v. STATE.¹

Court of Appeals of Texas.

May 25, 1886.

Appeal from district court, Parker county; R. E. BECKHAM, Judge.

Indictment of Jake Crist. Verdict of assault with intent to murder. Defendant appeals. Affirmed.

One Smith had quarreled with the woman with whom defendant lived, and had told her that if she would send her man over he would settle it with him. Smith testified that as he was passing defendant's house the next morning on his way to work, with an axe on his shoulder, defendant came into the road, and, after a few words, advanced at him with a pistol in his hand; that, in order to bluff him, he (Smith) started towards him with his axe still on his shoulder, telling him to put up his pistol; and that defendant, when Smith was six feet distant, shot him. Defendant's mistress testified that defendant called out to Smith, "Stop a minute; you sent for me; what do you want?" and that Smith then started towards defendant with an axe drawn in a threatening manner; that when two or three steps distant defendant shot him; and that immediately afterwards defendant left the county, and did not return till arrested. There was evidence that defendant had previously said he would kill Smith if he ever troubled him.

Harcourt & Ball, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

HURT, J.

The conviction in this case was for an assault with intent to murder. It is insisted that, as there was evidence tending to prove that appellant acted in self-defense, the court erred in not properly defining an assault, so that the jury could properly understand that portion of the charge in which the jury were instructed: "If you believe from the evidence that defendant did commit an assault upon said Smith, yet, if you further believe from the evidence that at the time said Smith was making an assault upon the defendant, or if it reasonably appeared," etc., "then you should acquit." The objection to the definition is that it omits "any threatening gesture." There was no objection to this omission. There was no charge on manslaughter, nor on mutual combat; nor was such charge requested, nor objection taken to the charge because of these omissions. Now, with reference to these omissions in the charge, being for the first time called to the attention of the court in a motion for new trial, the rule is that this court will look to the whole record, and, unless the errors were probably calculated to injure the rights of appellant, will not reverse. Looking, therefore, to the statement of facts and to the charge of the court as a whole, if errors, they were not such as would probably injure appellant's rights.

It appears that, on the day before this, Smith, the prosecutor, and one Mrs. Anderson had a very bitter quarrel, and that Smith told her that if she would send her man over he would settle the matter with him. The difficulty between Smith and appellant occurred next morning, near Mrs. Anderson's house. Appellant lived with Mrs. Anderson, and had, no doubt, been informed of what Smith had said to...