Flores v. State

• Citation: 79 S.W. 808
• Parties: FLORES v. STATE.
• Decision Date: 09 March 1904
• Court: Texas Court of Criminal Appeals

79 S.W. 808

FLORES v. STATE.

Court of Criminal Appeals of Texas.

March 9, 1904.

Appeal from District Court, Ward County; James L. Shepherd, Judge.

Alfredo Flores appeals from a conviction. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years.

By the first bill of exceptions, appellant questions the action of the court failing to charge the jury on aggravated assault. He says that the evidence introduced by defendant, and which was excluded by the court, tended to show that, if any assault was made by defendant, the same was about a month after defendant had learned that Ramirez, the assaulted party, had taken the hand of Amelia Corosco, and asked her to leave her mother and go with him. The testimony, as here presented, would not raise the issue of aggravated assault. For aught that appears, defendant made no indecent overtures to Amelia Corosco. So far as the court being required to give a charge on the excluded testimony, appellant's contention is not correct.

The second bill questions the action of the court permitting Segobio, a witness for the state, to testify to statements made by Ramirez, the party alleged to have been assaulted, at the time such assault is alleged to have been made; the declaration testified to by said witness being to the effect that immediately after the prosecutor, Ramirez, was shot, he exclaimed that Flores (appellant) had shot him. It is objected that this declaration was not admissible, because Ramirez was not competent to testify, being an unpardoned convict; having served a term in the penitentiary under conviction of felony. The bill, as has so frequently been held, should have stated this as a fact, and not as a ground of objection urged. However, the declaration does appear to be a part of the res gestæ; and, even if it were shown that Ramirez was an unpardoned convict, his declaration at the very time he was shot would be admissible as res gestæ. Neely v. State (Tex. Cr. App.) 56 S. W. 625; Kenney v. State, decided December 2, 1903, pending on rehearing.

Appellant complains that Amelia Corosco, witness for defendant, was put upon the stand, and was permitted to testify that, prior to the alleged assault, the party alleged to have been assaulted had on two separate occasions tried to get her to leave her home and go with him; that the third time he had taken her by the hand and tried to get her to go with him; that he did not ask her to marry him; that at the time of this conduct on the part of Ramirez she was living at home with her mother, and defendant, who is her brother; that prior to the alleged assault she had informed her mother and brother of the conduct of the said Ramirez; that, after said witness had thus testified, the district attorney moved the court to exclude all...