Freeman v. State

• Decision Date: 20 October 1915
• Docket Number: (No. 3690.)
• Citation: 179 S.W. 1157
• Parties: FREEMAN v. STATE.
• Court: Texas Court of Criminal Appeals

179 S.W. 1157

FREEMAN v. STATE.

(No. 3690.)

Court of Criminal Appeals of Texas.

October 20, 1915.

Rehearing Denied November 17, 1915.

Appeal from District Court, Bell County; John D. Robinson, Judge.

R. Freeman was convicted of assault with intent to murder, and he appeals. Affirmed.

Clem C. Countess, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of assault with intent to murder and assessed the lowest punishment.

He has only one bill of exception. The substance of it in full is: That the state's attorney asked one witness, "State to the jury, what, if anything, Mr. Thrillkill said to Stephens and Freeman at the very time they were throwing at Fagg?" and the witness answered: "He said, `Ernest, don't do that. Raleigh, don't do that.'" And he asked another witness "Didn't you hear Thrillkill tell Stephens don't do that, and Raleigh don't do that?" and the witness answered, "Yes." His objection to this was it was irrelevant, immaterial, and prejudicial and inadmissible because hearsay. We think it was admissible as res gestæ. It was addressed to appellant, and the other party Stephens, "at the very time they were throwing at Fagg," the assaulted party, and at the very time the offense charged was being committed by them. Branch, Cr. Law, § 339, p. 198.

Appellant's able attorney made a forcible and earnest oral argument, when this case was submitted, and, in addition, has filed a lengthy brief, which we have fully considered, ingeniously contending that the evidence was insufficient to show his intention to murder, that the assault was with a deadly weapon, that he participated in the assault, that the injuries of the assaulted party were caused by the assault, or that he was in a position to inflict them. We have carefully studied the whole evidence, and think none of his contentions are tenable. The testimony on some points is conflicting, but we think amply sufficient to sustain the verdict. It was sufficient to show, and cause the jury to believe, that Fagg, the assaulted party, in a drunken condition went into the back part of a hotel where appellant, said Stephens, and others were employed and at work; that his conduct and language to them was such as to be considered insulting; that some of them attacked him, and he hastily retreated out of the hotel through the back premises across an alley; that, while they were pursuing him and he running from them they each, appel...