Eagle v. State, 19972.

• Decision Date: 07 December 1938
• Docket Number: No. 19972.,19972.
• Citation: 122 S.W.2d 304
• Parties: EAGLE v. STATE.
• Court: Texas Court of Criminal Appeals

122 S.W.2d 304

EAGLE v. STATE.

No. 19972.

Court of Criminal Appeals of Texas.

December 7, 1938.

Appeal from District Court, Travis County; Graham Gillis, Judge.

Amadee Eagle was convicted of assault with intent to murder, and he appeals.

Reversed and remanded.

H. H. Shelton and Earl Shelton, both of Austin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for two years.

Drew Dodson, the alleged injured party, testified that he was an attendant at the Lock Filling Station on South Congress Avenue in the city of Austin; that on the afternoon of December 25, 1937, the appellant and three other negroes drove up to the filling station in an automobile for the purpose of purchasing some gasoline. Appellant asked for permission to use the rest room. Dodson referred him to Mr. Lock, who was in charge of the station, and appellant was refused the privilege of using the rest room. Appellant said: "I will not buy any more gas. * * * I will see that my company don't buy it." Dodson replied: "The best thing you can do is to shut up and get on out of here." Appellant then struck at Dodson, who in turn hit the appellant. At this point the appellant cut Dodson with a knife. Mr. Lock came out of the station and shoved the appellant back. He then jumped in his car and drove off. Dodson was taken to a hospital where his wound was dressed by a doctor. He was permitted to leave the hospital that night. On the following morning Dodson went to Driftwood (a distance of about 25 miles) to visit his mother and returned to Austin on the afternoon of the next day. From Dodson's testimony on cross-examination we quote: "From the time I received the wound up until immediately thereafter, I continued to pursue my ordinary avocation, walking around, eating, and circulating, until the time I went back to work the middle of next week."

The doctor who attended Dodson at the hospital testified that the cut (which was four or five inches in length) came down about an inch below the collar bone; that the lower end of the wound was about four or five inches from the heart; that the cut was "fairly close" to some large blood vessels in the vicinity of the heart. The cut was described as a "superficial wound". According to the doctor, while the wound was not one that, under proper medical care, would likely result in death, still it was in the region of blood vessels in the proximity of the heart, the severance of which could have produced death.

Appellant testified that he and his companions were on their way to San Antonio on the afternoon of Christmas Day, 1937, and stopped at Lock's Filling Station to buy some gasoline. The negroes requested permission to use the rest room and were told by Dodson to "ask the boss inside". The man on the inside (Mr. Lock) said: "You negroes can use the rest room this time, but don't use it no more." Some words passed between the parties after which the appellant said: "We just won't buy any more gas here." Dodson replied: "You needn't talk so smart about it." According to the appellant, as he walked to the front of his car, he was struck in the back of the head, and as Dodson was in the act of delivering the second blow, the appellant cut him with a knife....