Gay v. State

• Decision Date: 02 February 1938
• Docket Number: No. 19310.,19310.
• Citation: 115 S.W.2d 929
• Parties: GAY v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W.2d 929

GAY v. STATE.

No. 19310.

Court of Criminal Appeals of Texas.

February 2, 1938.

Rehearing Granted April 20, 1938.

Commissioners' Decision.

Appeal from District Court, Navarro County; Wayne R. Howell, Judge.

B. F. Gay was convicted of assault with intent to murder and he appeals.

Reversed and remanded.

Richard & A. P. Mays, of Corsicana, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

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

It appears from the record that on the day of the alleged assault a number of white men, accompanied by a few negroes, were out hunting rabbits. After they had hunted thirty minutes or more, appellant appeared with a couple of greyhounds and joined in the hunt. A short time later, the white men suggested that they go to another briar patch located in another pasture. Appellant declined to go because, he contended, his dogs had caught a number of rabbits but he had not been given any; that Jessie Daniels had all the rabbits. Daniels denied that he had any of the rabbits, and stated that he did not want appellant disputing his word. Appellant then drew a knife. Ernest Cummins, who saw the knife, called to Daniels not to go to the negro as he had a knife in his hand and would hurt him. Cummins started toward appellant and asked him to put up his knife, but appellant declined to do so and drew back his hand as if to strike him. Cummins then attempted to knock the knife from his hand with a green stick, but the stick slipped out of his hand. At this juncture, appellant ran at Cummins and stabbed him. The attending physician testified to three stab wounds, one being in the abdominal cavity and penetrating the cavity to a depth of four inches.

Appellant pleaded self-defense, and in support of said plea testified that Daniels and Cummins both approached him in a threatening manner; that Cummins hit him with a stick; and that, in order to prevent serious injury to himself, he stabbed Cummins. He also filed a plea for suspension of sentence in the event of his conviction.

The record being in this state, the court instructed the jury on both an assault to murder with malice and assault to murder without malice, as well as the law of aggravated and simple assault and self-defense.

Appellant urged a great many objections to the court's charge and requested a great many special charges. To discuss them all would serve no useful purpose and unnecessarily extend this opinion. Suffice it to say that the court adequately instructed the jury upon the law applicable to every phase of the case as made by the testimony and incorporated in his main charge every legal principle embraced in appellant's requested instruction, in so far as the same were applicable to the case.

Appellant's objection to the court's charge in failing to affirmatively instruct the jury that fear, terror, rage, or resentment, arising from an attempt on the part of Cummins to strike the defendant with a stick, constituted adequate cause as a matter of law, cannot be sustained. Since the repeal of the law of manslaughter, there is no statute which specifies or defines what constitutes adequate cause as a matter of law. Therefore it was not error for the court to refuse to give such an instruction. See Butler v. State, 121 Tex.Cr.R. 288, 51 S.W.2d 384.

Appellant's objection No. 8 to the court's charge, based on the ground that the court failed to instruct the jury that if the act of Cummins, in striking or striking at the defendant with a stick, caused such terror or passion, either alone or in conjunction with other acts and conduct of said Cummins or his associates, and did in fact produce in the mind of the accused such a degree of rage, resentment, terror, or passion as rendered his mind incapable of cool reflection, and that while in such condition and state of mind he did commit the act, it would be no more than an aggravated assault.

We do not believe that appellant was entitled to such an instruction. If he acted under such state of mind, but with an intent to kill, it would only reduce the offense from an assault to murder with malice to an assault to murder without malice.

By bill of exception No. 1, appellant complains of the following argument by the district attorney, to wit: "If this cutting had happened in the generation of you older jurymen, it would not have reached the courthouse, but these are younger men, gentlemen of the jury, and a verdict at your hands, commensurate with the crime, will cause them to have a reverence for the law."

The court qualified said bill, and in his qualification states that the argument was invited by the argument of counsel for appellant, but, notwithstanding, he instructed the jury not to consider it.

It occurs to us that a part of the argument, to wit: "A verdict at your hands, commensurate with the crime, will cause them to have a reverence for the law," was not improper. Appellant made a general objection to the entire argument complained of without directing his objection to that part of it which was improper. In the case of McKenzie v. State, 116 Tex.Cr.R. 395, 11 S.W.2d 172, 179, 12 S.W.2d 578, this court held that a general objection to an extended argument, a part of which was unquestionably proper, was insufficient; that it was incumbent upon the appellant to single out the remarks deemed objectionable and request that the jury be instructed not to consider them.

Of course, a part of the argument complained of was not a discussion of the evidence and was improper. But not every improper argument will justify a reversal of a case; it is only where the argument is of such prejudicial nature as was calculated to, and probably would, produce a conviction or enhance the punishment. In the case of Tweedle v. State, 29 Tex.App. 586, 16 S.W. 544, 545, this court speaking through Judge Davidson, said: "The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side." See, also, Dodson v. State, 45 Tex.Cr.R. 574, 78 S.W. 514; Davis v. State, 69 Tex.Cr.R. 420, 154 S.W. 550.

Bill of exception No. 16 recites that the State declined to cross-examine appellant, but, when appellant placed Sherman Miles on the witness stand, who testified as to the general good reputation of appellant as a law-abiding citizen, the State was permitted to elicit from him the fact that appellant, in the year 1931 or 1932, had been indicted for murder. To break the force of said testimony, appellant then proved that the district attorney had, by motion, requested that the murder charge be dismissed and...