Freddy v. State

• Decision Date: 23 March 1921
• Docket Number: (No. 6075.)
• Parties: FREDDY v. STATE.
• Court: Texas Court of Criminal Appeals

229 S.W. 533

FREDDY v. STATE.

(No. 6075.)

Court of Criminal Appeals of Texas.

March 23, 1921.

Appeal from District Court, Liberty County; J. L. Manry, Judge.

T. D. Freddy was convicted of assault with intent to murder, and appeals. Reversed and remanded.

D. A. Puckett and David E. O'Fiel, both of Beaumont, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Liberty county of assault with intent to murder, and his punishment fixed at five years' confinement in the penitentiary.

When his case was called for trial appellant asked for a continuance. The application was filed on August 10, 1920, after indictment in May, and showed that no subpœnas were issued for the absent witnesses until August 9, 1920, the day before the case was set for trial. We do not think the application showed any diligence, and that the continuance was properly refused.

Appellant asked the following special charge:

"Gentlemen of the jury, if you find as a fact, or believe from the evidence, that the defendant, T. D. Freddy, at the time of and during the commission of the alleged assault, did not act with malice aforethought, and that the acts alleged to have been committed by him were not preconceived or studied purposely to so act, and were not done in a manner showing a heart regardless of social duty, and fatally bent on mischief, then, if you so find, you will disregard the charge of assault with intent to murder, and only consider this case from the standpoint of the defendant's guilt or innocence of the charge of aggravated assault."

The charge of the court required the jury to find beyond a reasonable doubt the existence of malice aforethought before they could convict appellant of assault to murder and also told them that, even though they believed him guilty of an assault, yet if they had a reasonable doubt as to whether such assault was upon malice aforethought, they should acquit him of assault to murder, and consider whether he was guilty of an aggravated assault. The above-quoted special charge imposes an unnecessary burden on the accused, as it requires the jury to believe affirmatively that he did not act upon malice aforethought, and that his acts were not preconceived; and its refusal was not error.

The party alleged in the indictment to be assaulted was one Sam Willis, and the record discloses that the occurrence was a shooting in which Jerome Willis, a brother of Sam, participated, and appellant and his witnesses claim that both Sam and Jerome Willis shot at appellant a number of times. It appears from bill of exceptions No. 2 that when the trial was begun appellant invoked the rule as to all the witnesses, but that the court declined to exclude Sam and Jerome Willis from the courtroom during the trial upon the theory, as stated in the bill of exceptions, that they were the injured parties. This bill of exceptions is approved by the trial court without qualification. We are somewhat at a loss to understand this action of the learned trial judge. We have a statute giving to either party the right to have witnesses placed under the rule and excluded from the courtroom. Article 719, Vernon's C. C. P. Applying this statute, this court has often held that the discretion accorded to the trial court in its administration is not arbitrary. See pages 398, 399, Vernon's C. C. P., and collated authorities. It is true that the Ward Case, 70 Tex. Cr. R. 393, 159 S. W. 272, holds that the trial court did not abuse its discretion in excusing a witness from the rule upon request of the state therefor, based on the fact that said witness was familiar with all the facts of the case and would be of material aid to the state in presenting such facts. The facts of that case and the one now before us are very different. The witness so excused in the Ward Case was not a witness to the homicide, nor apparently to any other fact about which any of the witnesses for the accused gave evidence. He was not even summoned as a witness until it became evident that he purposed remaining in the courtroom, upon discovering which fact counsel for the accused procured the issuance and service upon him of a subpœna, and asked that he be placed under the rule. This the trial court refused, as stated, upon the request of the state. No authorities are cited in that opinion as supporting the court's action. We do not think the trial court...