Fulkerson v. State

• Decision Date: 20 October 1909
• Citation: 121 S.W. 1111
• Parties: FULKERSON v. STATE.
• Court: Texas Court of Criminal Appeals

121 S.W. 1111

FULKERSON v. STATE.

Court of Criminal Appeals of Texas.

October 20, 1909.

Appeal from Denton County Court; Lee Zumwalt, Judge.

J. H. Fulkerson was convicted of aggravated assault, and he appeals. Affirmed.

Garnett & Eldridge and Hopkins & Milliken, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is an appeal prosecuted from a conviction for the offense of aggravated assault, obtained in the county court of Denton county.

The testimony of the state is to the effect, in substance, that appellant, practically without excuse, struck one T. E. Gerren, while his back was towards him, some eight or ten blows on the head with his ticket punch, inflicting serious wounds, knocking him down, and rendering him unconscious. The record shows that the wounds were of such gravity as to confine Gerren to his bed, and that one of them was 2½ to 3 inches long, breaking the skin and penetrating to the bone. Appellant claimed he acted in self-defense, and on this issue the testimony was decidedly conflicting. The case was tried before the court without the intervention of a jury. The state's evidence, if believed, makes out a case.

1. Among other things, it is urged there is no sufficient evidence that the injury was serious, as that term is used in the statute, and we are referred, to sustain this proposition, to numerous decisions of this court. It seems to the writer that the decisions have gone very far on this line, and have required the injuries to be indeed serious in fact before a conviction could be sustained under this subdivision of our statute. Each case, after all, however, rests somewhat on its own facts. Our judgment is, however, that as here presented the evidence is sufficient. Wilson v. State, 34 Tex. Cr. R. 64, 29 S. W. 41, and Stevens v. State, 27 Tex. App. 461, 11 S. W. 459.

2. When the case was called for trial, appellant made his second application for a continuance for want of the testimony of J. M. McCommas, who was alleged to reside in the city of Dallas, and R. M. Low, who was alleged to reside at Letot, in Dallas county. No process was issued for either of these witnesses until on or about the day the case was called for trial, which was on the 21st day of January, 1908. The application itself shows that it was the second application. Among other essentials required in a second or subsequent application is that same shall show that the testimony cannot be procured from any other source known...