Eubank v. State, 12871.

• Decision Date: 05 February 1930
• Docket Number: No. 12871.,12871.
• Parties: EUBANK v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W.2d 808

EUBANK v. STATE.

No. 12871.

Court of Criminal Appeals of Texas.

February 5, 1930.

Appeal Reinstated May 28, 1930.

Commissioners' Decision.

Appeal from Criminal District Court, Cameron County; H. B. Galbraith, Special Judge.

Porter Eubank was convicted of aggravated assault, and he appeals.

Reversed and remanded.

Carter & Stiernberg, of Harlingen, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is aggravated assault; the punishment, confinement in jail for five months.

The record fails to show that appellant gave notice of appeal. In the absence of proper notice of appeal, this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Appellant's Motion to Reinstate Appeal.

CHRISTIAN, J.

It is made to appear by supplemental transcript that timely and proper notice of appeal was given and entered in the minutes of the court.

The judgment of dismissal is set aside, and the appeal is reinstated, and the case now considered on its merits.

Appellant was a constable in Cameron county. The state's testimony was in substance as follows: On the night of the 22d of February, 1929, appellant, Jess Riley, and Strong Boynton drove appellant's automobile to a carnival, where they picked up a Mexican, who told them that a car loaded with intoxicating liquor was coming to town. Carrying the Mexican with them for the purpose of having him identify the car, they drove down a road and stopped. Presently they saw a Ford sedan approaching. They endeavored to stop the car, but the occupants failed to heed their command to halt. The car increased its speed. Being unable to stop the car, appellant fired a shotgun in its direction and Boynton fired a pistol toward it three times. The car stopped, and one of the occupants jumped out and ran into a field about a hundred yards away. A search of the car disclosed that it contained no intoxicating liquor. It appeared that the Mexican accompanying appellant and his companions was mistaken as to the identity of the car. The car on which the officer and his companion fired was occupied by school boys who were on their way to a party. Four shots took effect in the car. There were two holes in the fender, and one hole in the right side close to the top. Buckshot blew the extra tire out. The occupants of the car were not injured.

Appellant testified that he had secured a search warrant authorizing him to search a Ford sedan of a certain description; that the information upon which the affidavit was made was received from a Mexican; that when the car in question approached, the Mexican said: "That is the car. Catch him." That the driver of the car refused to halt but increased the speed of the car, and that he (appellant) shot at the casings for the purpose of frightening the occupants and making them stop; that he did not intend to hit the automobile, and had no intention of injuring the occupants; that he fired one shot with a shotgun and Boynton fired three shots with a pistol.

The indictment charged assault with intent to murder the occupants of the car, naming them. In his charge the court submitted assault with intent to murder, aggravated assault, and simple assault. Appellant timely and properly requested the court to instruct the jury to acquit him of aggravated assault if they believed that he shot at the tires of the automobile solely for the purpose of frightening the occupants and causing them to stop and not with intent to injure them. We are of the opinion that the learned trial judge fell into...