Hamilton v. State

• Decision Date: 18 April 1900
• Citation: 56 S.W. 926
• Parties: HAMILTON v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

56 S.W. 926

HAMILTON v. STATE.¹

Court of Criminal Appeals of Texas.

April 18, 1900.

Appeal from district court, Hays county; H. Teichmueller, Judge.

Jesse Hamilton was convicted of an assault with intent to murder, and he appeals. Affirmed.

Will G. Barber and B. G. Neighbors, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of an assault with intent to murder his divorced wife, Sallie Hamilton, and his punishment assessed at confinement in the penitentiary for a term of five years.

In bills Nos. 1, 2, and 3, appellant urges the following matters as error, to wit: In bill No. 1 it is shown the state proved by Sallie Hamilton, the injured female: That appellant was her divorced husband. That they had been married three or four years. That, before the shooting in this instance, appellant had frequently assaulted witness. One night, about a year before, he shot at her and beat her up; and when witness got away, by running around the bed, he took a slat from the bed and beat her mother so she was laid up for several days in bed. Witness' mother interceded for her, and appellant turned upon and beat her mother. Prosecutrix stated she had scars on her person now, made by defendant. On one occasion he stabbed her with a knife. He had also thrown smoothing irons at her, and beat her up with sticks of wood. Prosecutrix and appellant lived in the same house until she secured the divorce. The state offered this testimony on the ground of malice, and it was admitted. Appellant objected upon the following grounds: (1) That the same was too remote, and irrelevant to any issue on the trial of this cause, and did not tend legitimately to prove any controverted fact. (2) Any previous assaults upon and cruel treatment by appellant of his wife and mother were immaterial to any issue made by the pleadings in this case. (3) Said evidence shows such other assaults to be remote in point of time, that all such assaults had been condoned by the wife, and that she and defendant continued to live together thereafter. (4) It raised collateral issues, and called upon appellant to disprove or justify each of the transactions, with which he was not charged, or in any way notified he would be expected to meet. (5) It was calculated to improperly prejudice the jury against him and his cause, and to improperly lead them to lean towards a conviction and punishment of appellant for matters not charged against him in this case. (6) An assault upon the mother could not prove malice against the daughter, and was too remote. In bill No. 2, the state introduced Jennie Hamberger, who, after stating she was the mother of the injured female, Sallie Hamilton, testified, over appellant's objection: That before appellant shot at Sallie Hamilton, which shooting occurred on March 18, 1899, and for which he is charged with assault with intent to murder in this case, appellant had fought and whipped Sallie a number of times. They got along all right some of the time, but much of the time they did not. He beat her unmercifully,—once with the window stick; another time, stabbed her with a knife; and on another occasion he began beating Sallie, and when she ran behind the bed, and witness begged appellant to desist, he took a bed slat and beat witness with it until she was compelled to go to bed. Bill No. 3 complains that the state asked Jennie Hamberger the following question: "Were you not, during the time that Sallie and appellant had their troubles, and up until the divorce, a big, strong, healthy negro woman?" To which the witness answered: "Yes; but this beating me up so with the bed slat is what caused me to be this way, the doctor says." Appellant also objected to all this testimony on substantially the same grounds stated above with reference to bill No. 1.

In Leeper v. State, 29 Tex. App. 63, 14 S. W. 398, we held that where several assaults are committed at the same place, and almost simultaneously in point of time, and of the same manifest purpose, and were so closely connected as to relate and be illustrative of...