Graham v. State

• Decision Date: 12 November 1913
• Parties: GRAHAM v. STATE.
• Court: Texas Court of Criminal Appeals

160 S.W. 714

GRAHAM v. STATE.

Court of Criminal Appeals of Texas.

November 12, 1913.

Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.

Ralph Graham was convicted of aggravated assault and battery upon his wife, and appealed. Reversed and remanded.

Templeton & Templeton, of Wellington, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of aggravated assault and battery upon his wife.

The complaint and information both charge that the assault was committed with a broomstick, a dipper, and with his fist. This complaint was filed on the 11th of June, 1913. The information was filed on June 16th. The trial was had on June 16th. When the information was filed appellant insisted upon having his two days authorized by the statute in which to prepare and file written pleadings. This was overruled by the court, and exception reserved. This was error. The authorities sustain appellant's proposition that he is entitled to two days in which to prepare and file his written pleadings after the filing of the information. Evans v. State, 36 Tex. Cr. R. 32, 35 S. W. 169; Whitesides v. State, 44 Tex. Cr. R. 410, 71 S. W. 969; Holden v. State, 44 Tex. Cr. R. 383, 71 S. W. 600; McFadin v. State, 44 Tex. Cr. R. 471, 72 S. W. 172; Lightfoot v. State, 77 S. W. 793; Johnson v. State, 49 S. W. 619; King v. State, 56 S. W. 926. The statute guarantees this right.

When the case was called for trial appellant also filed his application for a continuance for the testimony of his father. It is unnecessary to discuss that matter, as the presence of the absent witness or his testimony can be obtained upon another trial.

There was another application filed for continuance by R. L. Templeton. This application sets up the fact that defendant was neither physically nor mentally able to undergo the ordeal of his trial. The statement of facts shows he was in such condition that he was not, and could not perhaps be, placed upon the witness stand to testify. The wife of appellant was the only witness introduced during the trial. She testified to the facts of the assault, and stated that he was crazy, and that she had always regarded him as insane from the time that she married him, and so regarded him at the time of the trial. While this language of the witness may be a little strong, yet it tends strongly to support the application signed by the affiant, Templeton, that appellant was not in a condition to be tried, and he could not be of any assistance to his counsel during the trial. Taking these two applications for a continuance together, and especially the latter one, we are of opinion the court should not have tried appellant at the time that he was tried.

The information was not signed by the county attorney, but was signed by private prosecutor in the case. It seems he was employed by the people of the community to prosecute. There is a recitation in the judgment to this effect: "The state of Texas appeared by J. L. Lackey as special county attorney, who was appointed by the court on account of the absence of the county attorney, and the defendant appeared in person and announced not ready for trial, and asking two full days in which to file motion pleadings," etc. An inspection of the trial of the case seems to indicate that the county attorney, Small, was present and conducted the case; at least, he contested, over his official signature, matters set up by defendant's counsel, and signs the statement of facts officially. Upon another trial this matter should be corrected, and the record not left in the condition of controverting matters of this sort when there is no occasion for it, but where controversies of this sort do occur, the record ought to make it plainly to appear why such things do occur.

There are several bills of exception to the introduction of...