Feland v. State, 30355
| Decision Date | 11 February 1959 |
| Docket Number | No. 30355,30355 |
| Citation | 323 S.W.2d 37,168 Tex.Crim. 11 |
| Parties | Edward L. FELAND, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[168 TEXCRIM 11] Stevens, Ludtke & Tarrant, by O'Brien Stevens, Max Garrett, Houston, for appellant.
Dan Walton, Dist. Atty., Thomas D. White and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The appeal is from a conviction for assault with intent to murder without malice; the punishment, 2 1/2 years.
The indictment charged assault with intent to murder with malice.
The evidence shows and appellant himself testified that, while riding in an automobile traveling at a high rate of speed, appellant fired his shotgun three times aiming it at an automobile with five people in it which was some half a car length ahead and a foot or so to the right, traveling in the same direction.
One of the shots struck Terrell, who was the driver of the second car, in the arm requiring that it be amputated.
Omissions in the court's charge are the sole ground upon which reversal is sought, it being appellant's contention that the court failed to instruct the jury affirmatively on the issue of lack of intent to kill, and failed to charge upon the law of [168 TEXCRIM 12] reasonable doubt as between the offense of assault with intent to murder and aggravated assault.
The charge submitted assault with intent to murder with malice, the jury being required, in order to convict, to find beyond a reasonable doubt that appellant, with malice, made the assault with intent to kill and also that the weapon used was a deadly weapon. The charge then instructed that if the jury had a reasonable doubt as to whether or not the defendant committed the offense with malice but found beyond a reasonable doubt that he committed the offense to find him guilty of assault with intent to murder without malice.
The charge further instructed that if the jury had a reasonable doubt as to whether he was guilty of assault with intent to murder, with malice or without malice, but believed beyond a reasonable doubt that the defendant was guilty of some grade of offense, they would then consider if he was guilty of aggravated assault, and defined and submitted that offense.
This portion of the charge was confined to the question of aggravated assault with a deadly weapon and required the jury in order to convict to find beyond a reasonable doubt that the defendant, by shooting him with a gun, did assault Lee K. Terrell but did not intend to kill Terrell.
Appellant's version of the shooting was submitted as an affirmative defense. The court charged on the law of self-defense under reasonable apprehension or fear of death or serious bodily injury at the hands of Terrell, or anyone in the car with Terrell.
In addition the jury was instructed that if, as viewed from appellant's standpoint, immediately before he fired the shotgun it reasonably appeared to him that the automobile driven by Terrell was about to be driven against appellant's automobile, and that it reasonably appeared to appellant that he and the other occupants of his automobile might thereby suffer serious bodily injury, and that appellant discharged his shotgun at the automobile driven by Terrell for the purpose of preventing such injury, or if the jury had a reasonable doubt as to such facts, to acquit.
The charge fully protected appellant's rights and it appears from the record that he was accorded a fair and impartial trial.
The judgment is affirmed.
[168 TEXCRIM 11] On Motion for Rehearing
Rehearing Denied.
[168 TEXCRIM 13] DAVIDSON, Judge (dissenting).
The majority of this court overrule appellant's motion for rehearing without written opinion.
Upon original submission appellant did not contend that the trial court's charge was fundamentally erroneous in the particular hereinafter mentioned. He presents that question in his motion for rehearing.
I am convinced that appellant's contention is well taken and should be sustained. In support of that contention, I submit the following as my dissent:
Here is a man convicted of the offense of assault with intent to murder without malice aforethought, without the jury having been advised at any time by the trial court the elements necessary to constitute that offense. In reaching their conclusion, the jury did so without any guide from the trial court by which they might know the law touching such offense. Of necessity, then, the jury were at liberty to substitute in lieu of the law their views as to the elements constituting that offense.
For that reason, the charge was fundamentally erroneous and a conviction under such conditions should not be sustained.
In analyzing the charge which the trial court gave to the jury it is found that 'malice aforethought' was defined therein as a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts...
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Benavides v. State
...as to how to resolve the doubt or where the burden of proof lies on that issue. Shelby, 724 S.W.2d at 140; see also Feland v. State, 168 Tex.Cr.R. 11, 323 S.W.2d 37 (1959). The charge in the present case clearly instructs the jury that, if it is not convinced beyond a reasonable doubt that ......