Green v. State

• Decision Date: 18 March 1942
• Docket Number: No. 22010.,22010.
• Citation: 160 S.W.2d 940
• Parties: GREEN v. STATE.
• Court: Texas Court of Criminal Appeals

160 S.W.2d 940

GREEN v. STATE.

No. 22010.

Court of Criminal Appeals of Texas.

March 18, 1942.

Rehearing Denied April 22, 1942.

Commissioners' Decision.

Appeal from District Court, Dallam County; James W. Witherspoon, Judge.

Robert Green was convicted of assault with intent to murder, and he appeals.

Affirmed.

B. N. Richards, of Dalhart, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for an assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant challenges the sufficiency of the evidence to support his conviction for the offense charged. The evidence adduced by the State, briefly summarized, shows that late in the afternoon of May 8, 1940, the appellant, together with Oliver McMurry and Henry Want, went to the home of the latter. From there, appellant and McMurry went to the home of E. O. Trosper. Upon arriving there, they entered without any invitation from Trosper or any member of his family. They had with them some beer and a half pint of whisky. They offered some of the beer to Mr. Trosper and he drank a glass of it. During the time they were at the Trosper home, Mrs. Trosper offered to sell them some tickets to a P. T. A. meeting. Appellant purchased two of the tickets at the price of 15 cents each. McMurry did not buy any tickets, stating that he did not have any money. Thereupon, appellant punched him in the abdomen and remarked, "I thought you were a tight s__ of a b__; now I know it." They then clinched and a tussle ensued. Mr. Trosper told them that if they wanted to fight to get out of his home. He opened the door, shoved them out and then closed it. Soon thereafter, he heard McMurry say, "Well, you have knocked my teeth out; I will have to get to the dentist." Upon hearing the remark, Mr. Trosper opened the door, and Mrs. Trosper assisted McMurry into the house and washed the blood from his face. The doctor who treated McMurry found that his right jawbone was broken in two places,—the left in one place; and two teeth had to be removed. The evidence showed that appellant struck McMurry with a piece of timber two inches thick, four inches wide and two feet long. Dr. Moore testified that a piece of timber of the kind and character in question, in the hands of any average-sized man, striking another with considerable force, is likely and calculated to cause death. The injured party was under the care and treatment of Drs. Moore and Johnston for six weeks.

Appellant took the witness stand and testified in his own behalf, stating that he did not strike McMurry with a piece of timber, but that he struck him with his fist; that he intended to knock him down whatever the result might be, but he did not intend to kill him. The officer who arrested appellant within two or three hours after the occurrence and took him to jail, testified that he saw no bruises or abrasions on the appellant's hands at the time; nor did they appear to be swollen.

It occurs to us that the jury had sufficient evidence before them as a basis for their conclusion that appellant committed the assault with an intent to kill. The court, in his charge to the jury, instructed them on the law of assault with intent to murder, with and without malice, and upon the law of aggravated and simple assault.

The only objection which appellant urges to the court's charge is that the evidence is insufficient to raise the issue of assault with intent to murder with or without malice, and that, therefore, the court's charge is not applicable to the facts. We are not in accord with this...