Davis v. State

• Decision Date: 12 March 1924
• Docket Number: (No. 7959.)
• Citation: 259 S.W. 946
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

259 S.W. 946

DAVIS v. STATE.

(No. 7959.)

Court of Criminal Appeals of Texas.

March 12, 1924.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

Roy Davis was convicted of assault to murder, and he appeals. Reversed and remanded.

DeWitt Bowmer, of Temple, for appellant.

Few Brewster, Dist. Atty., of Belton, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bell county of assault to murder, and his punishment fixed at 15 years in the penitentiary.

Three young men, a half gallon fruit jar of corn whisky, a bottle of wine, a woman, a Ford coupé and a night ride furnish the setting for this case. The young men were friends, jolly good fellows, and boon companions. As the ride progressed they drank the liquor until one of them became so intoxicated as that he was compelled to find a place of rest outside the car. His condition of helplessness or the lack of power to help on the part of his friends compelled them to leave him by the side of the road while they went further. They agreed to return for him later. Presently they came to a turn in the road but concluded to go straight on. They ran down a high bank and knocked down two fence posts at this point. Regaining the road, appellant desired that they return and pick up their unfortunate friend. Terry, the injured party, who was driving the car, declined and increased the speed of the vehicle. Appellant pulled the key out of the car which thereupon stopped. Terry demanded the return of the car key from appellant, who denied having it, and the two men got out of the car and went toward the front of the radiator. When they met all parties agree that Terry struck at appellant. Appellant asserts that Terry struck him with a pistol and broke his thumb. Appellant's thumb was broken as affirmed by a disinterested physician who saw it later and another disinterested witness to whose house appellant and the woman went later to telephone for assistance. When Terry struck appellant the latter fell but regained his feet and fled, pursued by Terry. After running appellant down the road a short distance, Terry returned to the car, and in a little while appellant came back. Terry again demanded the return of the car key and appellant again asserted that he did not have it, whereupon Terry again started toward appellant, who retreated up the road. Terry then began searching in the car for the key, and appellant returned with a rock in his hand and struck Terry on the head and knocked him to the ground. He then struck Terry a number of blows on the head and face with the rock, according to the state's testimony. Appellant asserts that when he returned to the car from his second flight that he and Terry began to fight and got down upon the ground, and that he was getting the worst of the fray, and his hand came in contact with a rock which he seized and used to defend himself, claiming that he then beat Terry until the latter fell over and let him alone. Witnesses who came to the scene afterward said that the weeds were mashed down for quite a little space, and that they had a great deal of blood on them, and at least two rocks were found with blood on them. Appellant left Terry lying on the ground and went to the car where he and the woman sat and talked for a while, and then appellant said they must do something, that they had to help Terry and get assistance. He and the woman then went to the nearest house, the owner of which said that appellant's thumb was broken and that his face was covered with blood. He phoned at their request to Temple...