Duncan v. State

• Citation: 115 S.W. 837
• Parties: DUNCAN v. STATE.
• Decision Date: 20 January 1909
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

115 S.W. 837

DUNCAN v. STATE.

Court of Criminal Appeals of Texas.

January 20, 1909.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Paul Duncan appeals from a conviction. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Travis county, Tex., on a charge of assault with intent to murder one Hays Wicks. On trial he was convicted, and his punishment assessed at confinement in the penitentiary for a period of two years.

The testimony shows that Hays Wicks was a man well advanced in years and was almost completely blind and unable to distinguish persons or objects. The appellant was a young man, weighing about 190 pounds. The evidence showed that appellant struck Wicks with a knife three or four inches long about the ear, inflicting an almost fatal wound. On the trial he pleaded self-defense, and became a witness in his own behalf in support of his plea.

1. The motion for a new trial contains, among other grounds urged for reversal, that the jury did not assess defendant's punishment at two years in the penitentiary because he was guilty of assault to murder, but because they agreed that was a milder punishment than fining him for aggravated assault. We find no basis in the proceedings to justify this conclusion.

2. The third ground of the motion is "because the court did not give all the law of the case to the jury," and the fourth ground is "because the court erred in each and every paragraph of its charge." These grounds are so general as that they ought not and cannot be considered. They point out no error, nor is it averred in the motion in what respect the court did not give all the law of the case, or wherein the supposed error consisted. It is well settled that these general grounds cannot be considered.

3. The second ground of the motion is that the verdict of the jury is contrary to and unsupported by the evidence, because it appears that the blow was suddenly made, without deliberation or specific intent of any kind, and for the reason that the evidence shows that after this blow was struck, and the injured party immediately got up and walked off, appellant did not follow up and attempt to complete a specific intent to kill, but desisted, though nothing prevented him from continuing the assault to the death. These matters were proper to be considered by the jury in arriving at their verdict, and in determining whether or not appellant was guilty of...